WEBSITE TERMS OF USE

1 Terms of use

(a) In these terms of use, "we", "us" and "our" means The Burraga Foundation (ABN 15 610 913 114) of 262 Liverpool St, Darlinghurst NSW 2010. Please read these terms of use carefully as they apply to your use of this website including any content on it but excluding the Applications referred to in paragraph (b) (the Website). By accessing or using the Website you agree to be bound by these terms of use.

(b) These terms do not apply to any of our applications for which any separate licensing terms apply (Applications).

(c) We may revise these terms of use from time to time. We will display a notice on the Website indicating when any such revisions have been made.

2 Intellectual property rights

(a) The Website is subject to copyright and possibly other intellectual property rights.

(b) We grant you a limited, non-transferable licence to access and use the Website solely for your personal, non-commercial purposes.

(c) We (or our licensors) retain all right, title, and interest in and to the Website, and nothing you do on or in relation to the Website will transfer any intellectual property rights to you or, except for the licence referred to in paragraph (b), licence you to exercise any intellectual property rights unless this is expressly stated.

(d) Except as provided in these terms of use, any use or copying of the Website for any other purpose is expressly prohibited, unless prior written consent is obtained from us. You may contact us at support@burraga.org if you wish to seek such consent.

(e) Subject to applicable law, we may revoke the permission referred to in paragraphs (b) and (d) at any time and may suspend or deny your access to or use of the Website without notice, if you breach, or we reasonably believe you have breached, any of these terms of use.

3 Linking to this website

(a) We encourage you to provide links to the Website. While you may use the name “Burraga Foundation” in the text of any such link, you may not use the Burraga Foundation logo or any of our other trade marks without our prior written consent.

(b) You must not frame this Website, or represent or imply that any part of the Website belongs to anyone other than us.

(c) If we notify you that we object to the manner in which you provide links to this Website, you must immediately cease providing such links.

4 Accuracy of content

(a) Some of the information on the Website may be provided by third parties, including individuals and organisation who utilise the various connected products. While we believe that these third parties are reliable sources of this information, we cannot guarantee that this information is always accurate, up-to-date or complete.

(b) The material provided and views expressed by other users of the Website or users of third-party products are the materials of those users and are not ours.

5 Registration and your content

5.1 REGISTRATION

(a) You are not required to register to use the Website. However certain features on the Website may only be available if you do register.

(b) When you register, we may provide you with an initial password (which you may be able to change at a later stage) and user name, which is personal to you. You must not share your user name or password with anyone else. You must keep any user name and password that are allocated to you private, and not disclose them to any other person. If you have lost or forgotten your password, you can request that we send a reminder email containing your password to your registered email address.

(c) You may cancel your registration, by notifying us at support@burraga.org and providing your user name.

(d) We may suspend or cancel your registration, either temporarily or permanently, if you breach, or we reasonably believe you have breached, any of these terms of use.

5.2 YOUR CONTENT

(a) You must not provide any material through the Website (Your Content) that:

(i) infringes the intellectual property or other rights of another person;

(ii) is defamatory, offensive, abusive, pornographic, profane or otherwise unlawful, including material that racially or religiously vilifies, incites violence or hatred, or is likely to insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability;

(iii) relates to unlawful conduct;

(iv) creates a privacy or security risk to any person, including by soliciting personal information from any person;

(v) solicits money from any person;

(vi) is false, misleading or deceptive;

(vii) contains financial, legal, medical or other professional advice;

(viii) would harm, abuse, harass, stalk, threaten or otherwise offend;

(ix) would reflect negatively on us, including our goodwill, name and reputation;

(x) tampers with, hinders the operation of, or makes unauthorised modifications to the Website;

(xi) would breach any applicable laws; or

(xi) would otherwise result in civil or criminal liability for you, us or any third party.

(b) By providing us with any of Your Content, you:

(i) grant us a non-exclusive, worldwide, royalty-free, perpetual, licence (including a right of sublicence) to use, copy, modify and otherwise exploit Your Content in any form or on any medium and for any purpose; and

(ii) warrant that you have the right to grant such licence.

(c) You agree to indemnify and hold us (including any of our directors, officers, employees and contractors) harmless from any claim made by any third party arising out of Your Content.

(d) We may, without notice to you, review, modify or remove any of Your Content in our absolute discretion including where we believe it violates these terms of use.

6 General restrictions

In using the Website, you must not:

(a) provide us with inaccurate or incomplete information;

(b) violate any applicable laws, or use the Website for any purpose that is unlawful;

(c) distribute viruses, spyware, corrupted files, or any other similar software or programs that may damage the operation of any computer hardware or software;

(d) collect or store data about other users of the Website; or

(e) engage in any other conduct that inhibits any other person from using or enjoying the Website.

7 Warranties and liability

(a) All express or implied guarantees, warranties, representations, statements, terms and conditions relating to these terms of use and the Website that are not contained in these terms of use, are excluded to the maximum extent permitted by law.

(b) In particular, and without limiting paragraph (a):

(i) while we endeavour to provide a convenient and functional Website, we do not guarantee that that your requirements will be met or that your use of the Website will be uninterrupted, error free or that the Website is free of viruses or other harmful components; and

(ii) we cannot be responsible for any loss, corruption or interception of data sent to or from our Website which occurs outside of our computer systems (such as those which occur while being sent over the internet).

(c) We recommend that you install and use up-to-date anti-virus, anti-spyware and firewall software on your computer.

(d) Nothing in these terms of use excludes, restricts or modifies any guarantee, term, condition, warranty, or any right or remedy, implied or imposed by any legislation which cannot lawfully be excluded or limited, including the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

(e) If any guarantee, term, condition or warranty is implied into these terms of use under the Australian Consumer Law or any other applicable legislation (a Non-Excludable Provision) and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or

(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

(f) Subject to paragraphs (g) and (h) and our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, our maximum aggregate liability for all claims under or relating to these terms of use or the Website whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to AUD $100.

(g) Subject to our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, we are not liable for, and no measure of damages will, under any circumstances, include:

(i) special, indirect, consequential, incidental or punitive damages; or

(ii) damages for loss of profits, revenue, goodwill, anticipated savings or loss or corruption of data,

whether in contract, tort (including negligence), in equity, under statute or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.

(h) Our liability to you is diminished to the extent that your acts or omissions (or those of a third party) contribute to or cause the loss or liability.

8 Variation of the Website

We may from time to time and without notice, vary, modify or discontinue, temporarily or permanently, any or all of the Website.

9 Links and advertisements

The Website may contain links to other third party websites, and also advertisements which include embedded links. We have not reviewed any of the sites linked to the Website and are not responsible for the content or accuracy of any off-site pages or any other sites linked to the Website. The inclusion of any link or advertisement does not imply that we endorse the linked site or the subject matter of the advertisement.

10 Privacy policy

In using the Website, you may give us personal information. By using the Website, you grant us consent to collect, store, use and disclose such personal information in accordance with our privacy policy. Please click on this link to view our privacy policy.

11 Force Majeure

Neither party will be liable for any failure or delay in performing any of its obligations under these terms if such delay is caused by circumstances beyond that party’s reasonable control.

12 Infringing or objectionable content

If you believe the Website contains elements that are objectionable, or infringe copyright or any other rights, please contact us by email at support@burraga.org and provide particulars of such content and a detailed description of why it is objectionable or infringing.

13 General

(a) If any part of these terms of use is held to be unenforceable, the unenforceable part is to be given effect to the greatest extent possible and the remainder will remain in full force and effect.

(b) These Terms and Conditions are be governed by the laws of New South Wales in Australia. Each party submits to the non-exclusive jurisdiction of the courts in New South Wales to determine any matter or dispute in connection with or arising out of these Terms and Conditions.

(c) These terms of use constitute the entire agreement between us and you in relation to the Website and supersede all other (prior or contemporaneous) communications or displays whether electronic, oral, or written, between us and you in relation to the Website.

(d) Your use of the Website is conducted electronically and you agree that we may communicate with you electronically for all aspects of your use of the Website, including sending you electronic notices.

(e) The provisions of these terms of use which by their nature survive termination or expiry of these terms of use will survive termination or expiry of these terms of use.

(f) No waiver, delay or failure by us to take any action shall constitute or be construed as a waiver of that or any other term, condition, option, privilege or right we may have.

(g) The word “including” when used in these terms of use is not a term of limitation.

(h) Our failure to exercise or enforce any right or provision of these Terms and Conditions does not constitute a waiver of such right or provision. If any provision or part of a provision in these Terms and Conditions is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms and Conditions remain in full force and effect.

(i) You may assign your rights under these Terms and Conditions if we consent (we will not unreasonably withhold consent).

(j) You agree that at any time, we may assign the rights under, and novate the benefits and obligations of these Terms and Conditions to a third party and that third party may assume our liabilities and obligations under these Terms and Conditions. We will provide you with reasonable notice if this occurs.

(k) The headings and subtitles in these Terms and Conditions are for convenience only and have no legal or contractual effect.

(l) Unless otherwise indicated, all amounts are stated and payable in Australian dollars.

14 Warranty and disclaimers

14.1 No Reliance on Content

(a) All of the Content provided on our Applications (including the User Materials) is provided to you for your personal information purposes only.

(b) Although we take all reasonable efforts to ensure that our Content is accurate, complete and up to date, we cannot guarantee it is accurate, complete or current at all times.

14.2 No warranties

Subject to clause 15(b):

(a) our Applications and our Content are provided on an "as is, as available" basis and, to the extent permitted by law, without representations, warranties or conditions of any kind, express or implied;

(b) we cannot warrant that our Applications or Content will be available, uninterrupted or error-free, that defects will be corrected, or that our Applications or the servers on which they are hosted are free of viruses or other harmful or destructive components; and

(c) we will not be liable for loss or damage to your computer, data or computer and telecommunications systems as a result of your use of our Applications or our Content. We encourage you to export and backup any of your data which you use or provide in connection with our Applications or our Content.

14.3 Security

(a) The security of your personal information is important to us. We take reasonable steps to prevent the personal information we hold about you from misuse, interference or loss, and from unauthorised access, modification or disclosure. This includes the use of technologies and processes such as access control procedures, network firewalls, encryption and physical security to protect the privacy of your personal information

(b) Other than as set out in paragraph (a) above, we do not make any representations, warranties or conditions of any kind, express or implied, as to the security of any information you may provide or activities you engage in during the course of your use of our Applications.

15 Liability

(a) To the maximum extent permitted by law, we exclude all express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms and Conditions or its subject matter, not contained in these Terms and Conditions.

(b) Nothing in these Terms and Conditions excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

(c) If any guarantee, warranty, term or condition is implied or imposed in relation to these Terms and Conditions under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

(d) Subject to our obligations under the Non-Excludable Provisions and to the extent permitted by law:

(i) we are not liable for, and no measure of damages will, under any circumstances, include: special, incidental, indirect, consequential, punitive or exemplary losses or damages whatsoever or damages for loss of revenue or profits, loss of business opportunities, loss of data, loss of goodwill, or failure to realise expected savings whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage; and

(ii) our maximum aggregate liability for all causes of action arising under or relating to these Terms and Conditions or its subject matter in each consecutive 12 month period from the commencement date of these Terms and Conditions, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, will not in any circumstances exceed the greater of:

(A) an aggregate of the amount paid by you under these Licensing Terms in relation to that 12 month period; or

(B) $100

16 Indemnity

You agree to release, indemnify and hold us, and each of our respective officers, directors, employees, contractors, agents, licensors, assigns and co-branders (collectively, Indemnified Parties) harmless from and against any damages, losses, costs and expenses, claims, actions, proceedings or demands, including reasonable legal costs and expenses and any fines or penalties imposed by any regulatory, advertising or trading body or authority, related to or arising out of your breach of these terms.

17 Third parties

(a) From time to time, our Applications may also include access to products and services of independent third parties either directly or via links to sites operated by third parties over whom we have no control.

(b) Where reasonably possible, we will indicate the products and services provided by third parties through our Applications.

(c) The Terms and Conditions are in addition to any Third Party T&Cs which may apply to third party products and services which you access or purchase through our Applications. Where Third Party T&Cs apply to products and services which you access or purchase, we will inform you of the existence of such Third Party T&Cs and provide you with reasonable access to those Third Party T&Cs. In case of any discrepancy between these Terms and Conditions and the Third Party T&Cs, the Third Party T&Cs will prevail to the extent of the inconsistency.

(d) Even though they may be co-branded with us, and may include our trademarks, any such products and services which you acquire from third parties are subject to agreement between you and that third party. We will not be a party to, or in any way responsible or liable for, any transaction concerning products or services which you acquire from such third parties or for any content or information presented in connection with any such products or services or for the availability of sites operated by third parties.

(e) Where any element of our Applications contain advertising or other material submitted to us by third parties please note that those advertisers are responsible for ensuring that material submitted for inclusion on our Application complies with all legal requirements. While we believe these third parties are reliable, we cannot guarantee that such advertising or material will always be accurate, up-to-date or complete. You agree that we have no liability in respect of any such advertisements and materials.

18 General practices regarding Use and Storage

From time to time, and where reasonably necessary, we may establish general practices and limits concerning use of our Application, including hours of operation, the maximum number of days that messages or other uploaded content will be retained on our Applications, the maximum number of messages that may be sent from or received by an account on an Application, the maximum size of any message that may be sent from or received by an account on an Application, the maximum disk space that will be allotted on our servers or any of our platforms on your behalf, and the maximum number of times, and the maximum duration for which, you may access our Applications in a given period of time.

19 Privacy

(a) Any personal information that you provide about yourself to us will only be used in accordance with our Privacy Policy.

(b) Please review our Privacy Policy, as it is incorporated into and forms a binding part of these Terms and Conditions.

(c) By submitting personal information to us or our service providers and agents, you agree to our collection, use and disclosure of such personal information for the purposes for which you submitted the information, and as described in and in accordance with our Privacy Policy, and as permitted or required by law.

(d) If you do not agree with our Privacy Policy, please do not submit any personal information to us.

20 Glossary

(a) Unless the context otherwise requires, the following meanings apply to their corresponding terms when those words are capitalised in Terms and Conditions

Access Details has the meaning given in clause 1.4 of these Terms and Conditions.

Application means one or more of the following:

(a) Storylines Application;
(b) MGoals Application;
(c) Multitenancy Language Learning Application; or
(d) Goalhub
(e) MyPLgoals
(f) any other cloud based software applications that we may provision, or develop and release from time to time on a subscription basis.

Content means any material on an Application and includes all text, data, sound, visual images, graphics, photos, site design, software and all other content displayed on or contained in our Applications.

Enhanced Service has the meaning given in clause 5(e)

Intellectual Property Rights means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights, design rights and trade secrets.

Licence Agreement has the meaning given in clause 4(a).

Burraga, Storylines or we or us means Burraga Foundation Limited.

Storylines Application means our cloud based software application that provides online learning tools and support for educators and students at schools around Australia and available for access at https://www.storylines.com.au.

Multitenancy Language Learning Application means our cloud based software application that provides online language learning tools and support for educators and students around Australia and is available for access through third-parties such as Bindila or the AECG.

MGoals Application means our cloud based software application which supports Aboriginal culture and education by providing local Aboriginal communities and schools with an online project that assists students to create community stories. Available for access at https://www.mgoals.com.au.

Goalhub Application means the cloud based software application provisioned under license from Goalhub Pty Ltd, that provides online learning management systems around Australia and available for access at http://www.goalhub.com.au/.

MyPLgoals Application means the cloud based software application provisioned under license from Goalhub Pty Ltd, that provides online learning tools and professional development support for educators within Australia and available for access at http://www.myplgoals.com.au/.

Organisation means the educational or community institution (if any) which provides you with, or requires you to have, access to, and use of, one or more of our Applications.

Organisation Terms and Conditions has the meaning given in clause 12(f).

Personnel means employees, secondees, agents, contractors and subcontractors.

Proprietor has the meaning given in clause 4(a).

Software means any software which we make available to you for download within an Application which enhances your use of that Application.

Third Party T&Cs means third party terms and conditions applicable to products and services which you may access or purchase through the various Burraga websites and platforms or its resellers.

User Material means any information, feedback, survey results, photographs, messages or other materials which are posted or otherwise provided on any of our Application by a user.

(b) The term “including” when used in these Terms and Conditions is not a term of limitation.

21 Termination and Suspension

(a) You may terminate these Terms and Conditions at any time for any reason (including where we breach these Terms and Conditions) without penalty by emailing us.

(b) If you have paid to access any services on our Applications (including any Enhanced Services) which are subject to a minimum term under the specific terms of service for those services, you will have access to those relevant Applications until the end of such term, subject to our right to terminate these Terms and Conditions under clause 21(e).

(c) If you terminate these Terms and Conditions for convenience, we will not refund you the fees (or any part of them) that we have already charged you.

(d) If you terminate these Terms and Conditions due to our breach which we have failed to remedy within 14 days of being given notice to do so, we will refund you any prepaid fees (calculated on a pro rata basis) where relevant.

(e) We may terminate these Terms and Conditions or suspend your account or subscriptions of your End Users at any time by providing you with notice if:

(i) you or your End Users breach these Terms and Conditions (or the End User Terms and Conditions, as the case may be) and do not remedy that breach within 14 days of being given notice to do so;

(ii) you or your End Users have not accessed your account for 6 months; or

(iii) if the Application which you have subscribed to is going to be shut down or merged with another service. We will refund any prepaid fees (calculated on a pro rata basis) in these circumstances.

22 Consequences of Termination

If you or we terminate these Terms and Conditions under section 21 we may delete your account and each of your End Users’ accounts (including relevant registration information) and your and your End Users’ User Materials. For that reason, we recommend that you and your End Users keep a copy of your relevant User Materials.

23 Modification or Termination of our Applications

(a) We may modify, suspend or discontinue our Applications (or any part thereof) at any time for any reason in our sole discretion.

(b) If we reasonably think that a change to one or more of our Applications under section 23(a) will benefit you or have neutral impact on you, we may make the change without telling you or your End Users.

(c) If we reasonably think that a change to one or more of our Applications under section 23(a) will have a materially detrimental impact on you or your End Users, or if we decide to suspend or discontinue one or more of our Applications, we will give you reasonable notice by email and:

(i) in the case of a change, you may exercise your right under section 21(a) to terminate these Terms and Conditions. We will refund any prepaid fees (calculated on a pro rata basis) in this circumstance; or

(ii) in the case of a suspension or discontinuance, these Terms and Conditions will automatically be terminated with respect to the affected Application(s) and clause 21(e)(iii) will apply.

(d) For clarity, an example of a change to an Application that may have a material detrimental impact on you would be if we withdrew a key advertised feature of that Application without offering a reasonably comparable alternative feature.

24 Changes to these Terms and Conditions

(a) We may change these Terms and Conditions including increases in the Subscription Fee or price of Enhanced Services, at any time at our sole discretion. Any change to prices will not affect any Applications or Enhanced Services which you have already paid for.

(b) Your use of our Applications including your purchase of Enhanced Services following such change will constitute your agreement to be bound by the modified Terms and Conditions.

(c) If we reasonably think that a change to these Terms and Conditions under section 24(a) will benefit you and your End Users or have neutral impact on you and your End Users, we may make the change without telling you or your End Users.

(d) If we reasonably think that a change to these Terms and Conditions under section 24(a) will have a materially detrimental impact on you or your End Users, for example, where we increase the price of the Enhanced Services, we will give you reasonable notice by email and you can exercise your right under section 21(a) to terminate these Terms and Conditions. We will refund any prepaid fees (calculated on a pro rata basis) in this circumstance.

25 Competitions, Contests and Prize Draws

From time to time we may run competitions, contests, games, prize draws and promotions on our Applications. These may be subject to additional terms, conditions and rules that will be made available at the time of such competitions. By entering into or participating in such competitions, you agree to comply with and be bound by such additional terms, conditions and rules.

26 Copyright Policy

If you believe that your or your End Users’ copyright has been infringed by our Content or any User Material on our Applications, please email us support@burraga.org.