Terms and Conditions
Swapple.me (ABN 28168877709) (swapple.me) is the owner and operator of the Website.
These terms and conditions set out the terms and conditions under which You and your Childcare Centre (together, "You") are permitted to access and use the Website.
Agreement means this License Agreement
Australian Consumer Law means Schedule 2 of the Competition Consumer Act 2010 (Cth)
Confidentional Information means the terms of this Agreement and all information belonging to or relating to swapple.me, whether oral, graphic, electonic, written or in any other form, that is:
- or should reasonably be regarded as, confidential to swapple.me; or
- not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement.
Documentation means any user manual, guides, explanatory notes or memoranda that are supplied with the Website and/or provided to You, as updated from time to time by swapple.me.
User means a person who uses the Website for any purpose whatsoever.
Health Information has the meaning given to the term in the Health Records Act 2001 (Vic).
Intellectual Property (IP) means all present and future industrial and intellectual property rights including, without limitation, patents, copyrights, 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).
Party means a party that has agreed to be bound by the terms and conditions contained in this Agreement.
Personal Information has the meaning given to the term in the Information Privacy Act 2000 (Vic).
Privacy Law means the Privacy and Data Protection Act 2014 (Vic) and the Health Records Act 2001 (Vic) and any applicable regulation, ordinance, code, standard or requirements under that legislation as updated, amended or replaced from time to time.
Sensitive Information has the meaning given to the term in the Privacy and Data Protection Act 2014 (Vic).
Subscription Fee means the fees as notified by swapple.me in writing to the childcare centre and agreed to by the childcare centre unless otherwise agreed by the Parties. The Subscription Fee is exclusive of GST unless otherwise stated.
Upgrades means any modifications, new or revised versions of the source code that the Website requires to operate more efficiently or effectively as determined by swapple.me at its sole discretion.
Website means the website located at the URL www.swapple.me which a User obtains a right to use subject to the terms and conditions of this Agreement.
Works means the source code embedded in the Website that contains all algorithms, source code, and system logic relating to the Website that is subject to this Agreement which swapple.me operates.
In this Agreement unless the context requires otherwise:
- the singular includes the plural and vice versa;
- the headings are used for convenience only and do not affect the interpretation of this Agreement;
- other grammatical forms of defined words or expressions have corresponding meanings;
- the word "person" includes a natural person and any body or entity whether incorporated or not;
- a reference to A$, $A, dollar or $ is to Australian currency unless expressed otherwise;
- wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)"; and
- a reference to a thing includes a part of that thing.
Grant of Licence
In consideration of payment by You of the Subscription Fee, swapple.me grants You a non-exclusive, limited licence to use the Website for the sole purpose of offering and otherwise managing the bookings of Your Childcare Centre in accordance with the terms and conditions of this Agreement.
You agree to pay the Subscription Fee to swapple.me within 14 days of receiving an invoice from swapple.me. The Subscription Fee is exclusive of GST unless otherwise stated.
Swapple.me will use its reasonable endeavours not to use Your name or photo in any publicity, advertising or news release without Your prior written approval
Use of Account and termination
Specific prohibitions on use
You agree that You must not:
- use the Website for any purpose or in any manner other than as set out in clause 2.1;
- use the Website in any way that could damage the reputation of swapple.me or the goodwill or other rights enjoyed by swapple.me;
- de-compile, disassemble, decrypt, or otherwise reverse engineer the Website or permit any third party to do so; or
- disseminate any Personal Information, Sensitive Information or Health Information gained through use of the Website in a way that contravenes a Privacy Law.
Termination of Account
Swapple.me reserves the right to limit, cancel, suspend or terminate Your Account for any reason and at any time as determined by swapple.me in its sole discretion.
Ownership of Intellectual Property
Swapple.me retains all right, title and interest in and to all Intellectual Property in the Website, Works, Upgrades and the Documentation.
Limitation of liability and Disclaimer
Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods or services in certain circumstances, each a Non-Excludable Provision.
Subject to the express terms of this Agreement and swapple.me’s obligations under the Non-Excludable Provisions, and to the fullest extent permissible by law, swapple.me expressly disclaims all warranties of any kind with respect to the Website or Your use of the Website, 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 or non-infringement.
Limitation of liability
To the fullest extent permissible by law, swapple.me is not liable to You or any other party (whether in Contract or Tort):
- 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 directly or indirectly caused by use of the Website; or
- 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 Website, even if the swapple.me has been advised of the possibility of such damages or if such damages are foreseeable.
To the fullest extent permissible by law and subject to clause 5.2.3, in no event will swapple.me's liability to You or any third party for all damages exceed the amounts paid by You to swapple.me for the use of the Website.
To the fullest extent permitted by law, the liability of swapple.me for a breach of a Non-Excludable Condition is limited to:
in the case of the provision of services:
- the supplying of the services again; or
- payment of the cost of an equivalent Subscription.
You indemnify swapple.me against all losses, damages or expenses (on a full indemnity basis and whether incurred by or awarded against swapple.me) that swapple.me may sustain or incur as a result, whether directly or indirectly, of any:
- use of the Website by You or any third party permitted or authorised by you;
- breach of this Agreement; or
- any other act or omission by You.
- keep swapple.me's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of swapple.me;
- take all reasonable steps to secure and keep secure all of swapple.me's Confidential Information coming into Your possession or control; and
- not deliberately memorise, use, modify, reverse engineer or make copies, notes or records of swapple.me's Confidential Information for any purpose other than in connection with the performance by You of Your obligations under this 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.
Governing law and jurisdiction
This Agreement is governed by the law applicable in the State of Victoria, Australia. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria, Australia.
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.
Clauses 4, 5 and 6 survive termination of this Agreement.