TERMS OF SERVICE
Last updated: February 2022
Nautilus Media Group Pty Ltd (ACN 164 132 781), an Australian corporation (hereafter referred to as CaringLife, we, us, our) is the owner, operator and licensor of the Website and the Service
In these Terms of Service, capitalised terms are defined as follows:
- Account Managers means (i) an Agency, or (ii) any person authorised by an Agency to create, manage and transfer a profile on the Service.
- Agency means a local agency or authority that is charged with the management of the Child’s Case Manager and/or Child depending on the relevant authority.
- Authorised Account Holder means any Agency, authority, Account Manager or case worker who may create, manage and transfer Child Profiles and/or Carer Profiles within the Service.
- CaringLife Account means an account created by an Authorised Account Holder or Child to access and use the Service.
- Case Manager means a Child’s case manager or social worker or a social worker appointed by an Authorised Account Holder to manage and oversee the placement a Child with a Carer and review content uploaded to a Child Profile.
- Carer means any person who is presently or has been in the past charged with the care of a Child by government mandate or authority.
- Carer Profile means a profile within the Service that relates to a Carer.
- Child means a person who is in foster, kinship or residential care and who is 18 years or younger, and Children has a corresponding meaning.
- Child Profile means a profile within the Service that relates to a Child, and is overseen by a Carer or Case Manager.
- Confidential Information has the meaning given to it in section 12.
- Content means any data, text, files, information, user names, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links, messages, comments and other content or materials uploaded to the Service.
- Force Majeure Event means strikes, lock-outs, or other labour disputes, riots, civil disturbance, actions or inaction of governmental authorities, epidemics, pandemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, computer downtime, nuclear disasters, or default of a common carrier.
- Intellectual Property Rights means any and all intellectual and industrial property rights in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, circuit layout rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction throughout the world.
- Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
- whether the information or opinion is true or not; and
- whether the information or opinion is recorded in a material form or not.
- Security Incident means:
- any incident of unauthorised disclosure of Personal Information held in the Service;
- any accidental or unauthorised access to any Personal Information held in the Service;
- any loss or corruption of, or other damage to any Personal Information held in the Service;
- (without limiting any of the foregoing) a ransomware or similar incident rendering Personal Information held in the Service inaccessible, irretrievable or unusable;
- any breach of our IT systems, whether or not the breach involves any:
- software, services, equipment or facilities provided or made available by one or more third parties; or
- Personal Information held in the Service.
- Sensitive Information has the same meaning given to it in the Privacy Act 1988 (Cth) and includes information or an opinion about an individual’s racial or ethnic origin, political opinions, membership of political association, professional or trade association or trade union, sexual orientation, criminal record, health, genetic and biometric information.
- Service means the CaringLife software and applications, including those available on and through the Website.
- Website means the website located at caringlife.com.
CaringLife provides an online platform for a Child to have a Child Profile within the Service. The Service enables Authorised Account Holders to create, manage and transfer Child Profile and Carer Profile accounts
The rights and obligations relating to use of the Website and Service are set out in these Terms of Service.
Unless stated otherwise, these Terms of Service apply to all users of the Service, including Children and Authorised Account Holders, whether as the holder of a CaringLife Account or otherwise (each referred to as User, you or your).
IMPORTANT: BY ACCESSING OR OTHERWISE USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY AND ABIDE THESE TERMS OF SERVICE.
If you do not accept and agree to be legally bound by and abide by these Terms of Service, you are not permitted to access or otherwise use the Service
The Child’s Case Manager is able to view any Content uploaded to the Service by a Child or Carer.
The Child’s Carer is able to upload into, and view, Content on a Child Profile and Carer Profile.
- Ability to Accept Terms of Service
You must be at least 18 years of age or, in the case of a Child accessing the Service, have authorisation to access the Service by an Authorised Account Holder.
In addition, you agree that you have not been previously suspended or removed from the Service and do not have more than one CaringLife Account enabling you to use the Service.
- CaringLife Service
Information provided by Users through the Service may contain links to third party websites that are not owned or controlled by CaringLife. CaringLife has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, CaringLife will not and cannot censor or edit the content of any third party website. By using the Service, you expressly acknowledge and agree that CaringLife will not be responsible for any damages, claims or other liability arising from or related to your use of any third party website.
- CaringLife Access
Subject to your compliance with these Terms of Service, CaringLife hereby grants you permission to use the Service, provided that:
- (a) you must use of Service solely for your Agency or personal use, and you must not resell or charge others for use of or access to the Service, or otherwise use the Service in any other manner that is inconsistent with these Terms of Service;
- (b) you must not attempt to reverse engineer, alter or modify any part of the Service; and
- (c) you must otherwise comply with these Terms of Service.
- Transmission and Posting of Content
5.1 Authorised Account Holders
You, as an Authorised Account Holder, are solely responsible for your conduct in ensuring compliance with applicable laws and any:
- (a) Content submitted, posted or displayed on or via the Services; and
- (b) Personal Information that you submit, post or display on or via the Service.
The Case Manager responsible for a Child in their care has the right to remove Content and Personal Information from the Service that they deem to be inappropriate for the Child or in breach of the Prohibited Activities (see section 9 below) or Other Conditions of Use (see section 10 below).
The Case Manager may, at their discretion, choose to delay publication of certain Content or Personal Information until the Child is of a suitable age or developmental stage.
For the avoidance of doubt, any decisions made by a Case Manager in relation to the publication of Content and Personal Information are outside the control of CaringLife, and CaringLife takes no responsibility for these decisions and any Content and/or Personal Information submitted, posted or displayed or not submitted, posted or displayed on or via the Service.
If you are a Child, all Content and/or Personal Information you submit, post or display on the Service will be accessible only by you and your Case Manager (and your Carer if it is shared with them by you or your Case Manager).
Please ensure that anything you post or display on the Service is Content that you are happy for your Case Manager to see.
By accessing and using the Service to upload and transfer other people’s Personal Information, you agree that:
- (b) you have obtained (or will obtain) all consents necessary under Data Protection Laws, for CaringLife to process the Personal Information through the Service as you direct, and that such consent has been obtained from the correct person.
- (c) Authorised Account Holders will notify CaringLife without undue delay if any other Authorised Account Holder or Carer withdraws their consent, or any part of their consent, or objects to any processing of Personal Information through the Service. This will include any withdrawal of consent, or objection received from a Child to whom the Personal Information relates;
- (d) you will ensure that you promptly update any Personal Information stored within your account, whether relating to you or another person, when requested to do so by that person;
- (e) upon becoming aware of a Security Incident, or any other breach, or suspected breach, of your security safeguards, you will notify CaringLife without undue delay and will provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by CaringLife;
- (g) you will not upload or transfer to the Service any form of government identity documents (such as birth certificates, drivers licences or other such materials containing government related identifiers) whether related to a Child or any other person;
- (h) you are responsible for your secure use of the Service, including securing your account authentication credentials, protecting the security of Personal Information when being uploaded or in transit to and from the Service and taking any appropriate steps to securely encrypt or backup any Personal Information uploaded to the Service;
- (i) you will not share your account authentication credentials with anyone else;
- (j) you are responsible for reviewing the information made available by CaringLife relating to data security and making an independent determination as to whether the Service meet your requirements and legal obligations under applicable Data Protection Laws.
- Changes to the Service
You accept that the Service may evolve and change over time. CaringLife reserves the right at any time and at its sole discretion to modify, adapt, suspend or discontinue, whether temporarily or permanently, the Service (or any part of it) with or without notice to you. To the extent permitted by law, CaringLife will not be liable to you or to any third party for any modification, adaptation, suspension or discontinuance of the Service.
- Disruptions to the Service
CaringLife will take all reasonable steps to ensure that the Service functions as intended. However, you acknowledge and agree that use of the Service is at your own risk and to the extent possible under the law, CaringLife makes no representations, warranties or guarantees that the Service will meet your specific requirements or in relation to the availability, continuity, reliability, accuracy, currency or security of the Service. CaringLife will not be liable if the Service, or any information obtained in relation to it, is inaccurate, outdated or incorrect, or if the Service is unavailable for any reason, including directly or indirectly as a result of:
- (a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
- (b) negligent, malicious or wilful acts or omissions of third parties (including any third party service providers engaged by CaringLife);
- (c) maintenance or repairs carried out by CaringLife or any third party service provider in respect of any of the systems used in connection with the provision of the Service;
- (d) any events beyond CaringLife’s control (including as a consequence of a Force Majeure Event); or
- (e) services provided by third parties ceasing or becoming unavailable.
To the extent permitted by law, CaringLife will not be liable for any loss or damage caused or suffered as a result of any partial or total breakdown of, or inability to use, the Service. CaringLife will use reasonable endeavours to promptly address (during normal business hours) technical issues that arise in relation to the Service.
CaringLife is not a backup service and reserves the right to remove any Content and/or Personal Information from the Service for any reason, without prior notice. Content and/or Personal Information removed from the Service may, in some cases, continue to be stored by CaringLife, including, without limitation, in order to comply with certain legal obligations. CaringLife encourages you to maintain your own backup of your Content and Personal Information. By using our Service, you agree that you will not rely on CaringLife for the purposes of Content and Personal Information backup or storage. CaringLife will not be liable to you for any modification, suspension, or discontinuation of the Service, or the loss of any Content and/or Personal Information.
- Prohibited Activities
In addition to the other restrictions outlined in these Terms of Service, you agree that you will not:
- (a) use the Service for any purpose that is illegal, beyond the scope of their intended use, or otherwise prohibited by these Terms of Service;
- (b) use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Service, or that could damage, disable, overburden or impair the functioning of the Service in any manner;
- (c) defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities;
- (d) post private or Confidential Information (defined below in section 12) via the Service, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers, or non-public email addresses;
- (e) compromise the security of the Service;
- (f) send any unsolicited or unauthorised advertising, spam, solicitations or promotional materials;
- (g) use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
- (h) modify, add to, adapt, delete or amend any part of the Service without our prior written consent;
- (i) reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Service (except to the extent expressly permitted by law);
- (j) use or attempt to use another User’s account without authorisation;
- (k) attempt to circumvent any content filtering techniques we employ, or attempt to access areas or features of the Services that you are not authorised to access;
- (l) attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services without our express written consent to do so;
- (m) impersonate any person or entity or otherwise misrepresents your affiliation with a person or entity;
- (n) infringe any Intellectual Property Rights (defined below in section 14) of any party;
- (o) buy, sell, rent, lease, or otherwise offer in exchange for any compensation, access to your CaringLife Account;
- (p) develop any third party applications that interact with User Content or the Service without our prior written consent; and
- (q) infringes any of our rights or the rights of any third party including under the Data Protection Laws;
- (r) breach any laws, regulations, standards or codes as enacted, modified or updated from time to time;
- (s) advocate the use of force or violence towards any person;
- (t) encourage, endorse, approve or recommend the performance of dangerous or illegal acts including suicide or self-harm;
- (u) introduce a virus, worm, trojan or other malicious code or other code that has harmful or destructive properties to the Service;
- (v) upload any Content or Personal Information that is inappropriate, offensive or contrary to any applicable laws or standards, including, without limitation, material which:
- (i) is obscene or indecent, depicts violence, sexual activity or pornography;
- (ii) contains instructions in drug use;
- (iii) instructs or encourages criminal activity; or
- (iv) defames, harasses, menaces, threatens, abuses, offends or embarrasses any person.
- Other Conditions of Use
In addition to the other conditions outlined in these Terms of Service, you agree that:
- (a) you are solely responsible for your interaction with other Users of the Service, whether online or offline. You agree that CaringLife is not responsible or liable for the conduct of any User. CaringLife reserves the right, but has no obligation, to monitor or become involved in disputes between you and other Users;
- (b) you are responsible for all data charges you incur while using the Service; and
- (c) you will be liable for all action taken by any person that has obtained access to your CaringLife Account or other breach of privacy or security.
- Particular rights and obligations of an Authorised Account Holder
In addition to the other rights and obligations applying to Users set out in these Terms of Service, the Authorised Account Holder has the right to control their corresponding Child Profile (including all Child Content and Personal Information uploaded to a Child Profile) and its management except as otherwise stated in these Terms of Service.
The only Authorised Account Holder that can add and view new Content and Personal Information relating to the Child is the Child’s Case Manager(s) and Carer.
If as the Authorised Account Holder you believe or suspect someone is accessing or managing the Content of a Child on a Child Profile under your management without your consent, you should immediately contact CaringLife. If you have previously granted someone access to a Child Profile that you manage, and you wish to revoke that access, you can remove their ability to access that Child Profile at any time by contacting CaringLife.
- (a) In this section 12, Confidential Information means, in respect of a person (Disclosing Party), all:
- (i) information which is designated as being Confidential Information by the Disclosing Party; and
- (ii) information which from all the relevant circumstances could reasonably be assumed by the other party to be confidential and proprietary to the Disclosing Party or to any third party with whose consent or approval the Disclosing Party uses that information.
- (b) CaringLife will treat Personal Information as confidential and will make every reasonable effort to keep Personal Information and Confidential Information confidential and secure. It will not disclose any Confidential Information or Personal Information except:
- (i) to Users who have been granted access to a Child Profile by the Authorised Account Holders; and
- (ii) to CaringLife’s personnel (or sub-licensees) and any service provider that CaringLife works with where necessary to operate the Service;
- (iii) where the information has been made anonymous or is aggregated into de-personalised information;
- (iv) if the relevant Authorised Account Holders give CaringLife permission to do so;
- (vi) if we are required or permitted to do so by law.
- (c) As internet transmissions cannot be guaranteed to be entirely secure in all aspects (including in relation to unauthorised use and disclosure of Personal Information), and you acknowledge and agree that you use this Service at your own risk, and you should only proceed to use the Service if you accept this condition.
- (d) You must not share another User’s Personal Information without that User’s explicit permission. You must not share a Child’s Personal Information without the permission of that Child’s Authorised Account Holder.
- (a) In this section 12, Confidential Information means, in respect of a person (Disclosing Party), all:
- Other Information
Some Users, such as those involved in piloting certain features, may have access to Content, Personal Information or User feedback. Those Users agree not to disclose this information to third parties without CaringLife’s prior written consent.
From time to time, CaringLife may permit a User to make screenshots or screencasts of the Service for marketing or educational purposes with CaringLife’s prior written consent. Without limiting any other provision, these screenshots or screencasts must not include any Content, Confidential Information and/or Personal Information relating to a Child or any other User unless:
- (a) where the screenshot or screen casts relate to a User who is not a Child, the relevant User gives their prior written consent; or
- (b) where the screenshot or screen casts relate to a User who is a Child, the relevant Child’s Authorised Account Holder gives their prior written consent.
- Intellectual Property Rights
CaringLife does not acquire ownership of any Intellectual Property Rights or other proprietary rights in respect of any Content or Personal Information posted through the Service, including that created by Authorised Account Holders or other Users. Intellectual Property rights in such Content and Personal Information will always remain with the relevant creator or other copyright owner but are licensed on a non-exclusive basis to CaringLife for the purposes of providing the Service to Users (as set out below). You agree that CaringLife owns all Intellectual Property Rights associated with the Service and any other materials created by or on behalf of CaringLife (including but not limited to images, photographs, animations, video, audio, text, software code, functionality, the interface, User feedback and accompanying printed or marketing materials).
By using the Service, you warrant that any Content and Personal Information you post to the Service will not infringe any other person’s Intellectual Property Rights or other rights.
CaringLife does not acquire ownership of any Intellectual Property Rights or other proprietary rights in respect of any Content or Personal Information (including Content or Personal Information that relates to a Child) posted or displayed on or via the Service, including that created by Authorised Account Holders or other Users.
Where a Child is not capable of assuming ownership of Content and/or Personal Information, the Child will receive a perpetual, non-exclusive, irrevocable, non-assignable, worldwide licence (including the right to sub-license) to the Content uploaded to that Child Profile by the Case Manager(s) and Carer(s).
You grant to CaringLife a non-exclusive, worldwide, royalty-free licence to use, reproduce, modify, adapt and communicate the Content and Personal Information posted or displayed on or via the Service (and all data and information comprised therein), and to sublicense third parties to do those things, to enable CaringLife to operate the Service.
You warrant to CaringLife that you have all rights necessary to grant this licence.
To the extent permitted by law and for the avoidance of doubt, the licence granted to CaringLife above includes the right to share Content or Personal Information with appropriate authorities, including the relevant government departments and Agencies, for review and audit.
- Limitation of Liability
To the extent that you acquire goods or services from CaringLife as a ‘consumer’ (as that term is defined in section 3 of the Competition and Consumer Act 2010 (Cth) (CCA)), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement. Nothing in these Terms of Service operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred the Australian Consumer Law (as set out in Schedule 2 to the CCA) or any other statute where to do so would contravene that statute or cause any term of these Terms of Service to be void (Non-excludable Obligations).
Except in relation to the Non-excludable Obligations, and to the extent permitted by law, CaringLife has no liability whatsoever for any or all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise suffered or incurred by you or any person:
- (a) in connection with or in any way relating to the Service, including:
- (i) any loss of profit, use, Content, data, opportunity, revenue or business;
- (ii) any breach by you of the Agreement;
- (b) as a result of any fraudulent use, misuse or misappropriation of Personal Information by a User or third party;
- (c) in connection with any disruption to or unavailability or failure of the Service or interference with or damage to computer systems or other electronic devices; and
- (d) otherwise under or in connection with these Terms of Service or in any way connected with the use of the Service.
The Service is controlled and offered by CaringLife from its facilities in Australia.
Each party acknowledges that the allocation of risk in these Terms of Service (including the exclusions and limitations set out in this section 15) has been freely negotiated at arm’s length and is regarded by it as reasonable.
This section 15 will survive these Terms of Service and your use of the Service.
- (a) in connection with or in any way relating to the Service, including:
You agree to defend, indemnify and keep indemnified, CaringLife, its affiliated companies and its respective officers, directors, employees, agents, representatives, contractors, licensees and successors against any and all claims, demands, obligations, losses, liabilities, costs (including legal fees) arising directly or indirectly out of or in connection with:
- (a) your access to or use of the Service;
- (c) violation of any Intellectual Property Rights or other rights of a third party by you or any person using your Account or username and password (whether with your consent or otherwise);
- (d) any claim that Content posted, displayed or uploaded by you on or via the Service causes damage to a third party; and
- (e) any breach of any applicable law including, but not limited to, the Children, Youth and Families Act 2005 (Vic).
This section 16 will survive these Terms of Service and your use of the Service.
- Suspension and Termination
- (a) Without prejudice to any other rights or remedies that we may have against you under these Terms of Service or at law, if you breach any provision of these Terms of Service, we may, by giving you written notice, terminate these Terms of Service and disable your access to the Service, without any liability to you.
- (b) We may:
- (i) impose limits on certain features or restrict your access to all or part of the Service, without having to give you notice;
- (ii) terminate your access to and use of the Service (including your User account) without cause by giving you 14 days prior written notice; or
- (iii) remove any Content provided by you in our sole discretion.
- (c) You may close your User account at any time by sending an email to firstname.lastname@example.org.
These Terms of Service, and any rights and licences granted hereunder, may not be transferred or assigned by you.
CaringLife may transfer, assign or sub-license its obligations under these Terms of Service without your consent.
- (a) In the event of a dispute, controversy or claim (Dispute) arising out of or in connection with these Terms of Service, including any question regarding their existence, validity or termination, the party raising such Dispute must immediately notify the other party of the existence and nature of the Dispute by serving a notice on the other party setting out detailed particulars of the Dispute including, if appropriate, references to documents and provisions which relate to the Dispute, and the parties shall use their best endeavours to immediately resolve the Dispute amicably.
- (b) The parties agree that in the event of a Dispute, a party must not commence any court or arbitration proceedings relating to the Dispute until it has made reasonable attempts to resolve the Dispute with the other party in accordance with paragraph (a), and not, in any case, before the expiration of twenty-one (21) Business Days after the Dispute was notified to the other party.
- (c) Nothing in this clause 19 prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with a Dispute without first having to attempt to resolve the Dispute in accordance with this clause 19.
- (d) You and CaringLife agree to arbitrate any dispute arising from these Terms of Service or your use of the Service in accordance with this clause 19 and (i) that any arbitration will occur in Victoria, Australia; and (ii) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Resolution Institute; and (iii) that the state or federal courts of Victoria, Australia have exclusive jurisdiction over any appeals of an arbitration award and over any suit, if any, between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.
These Terms of Service will be governed by and construed in accordance with the laws of Victoria, Australia, and the parties submit to the exclusive jurisdiction of the Victorian courts for any matter arising under or relating to these Terms of Service.
- Use of subcontractors
You agree that CaringLife may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service and store and manage the Content and/or Personal Information.
Nothing in these Terms of Service will be construed as excluding or overriding any mandatory terms imposed under any legislation applicable to these Terms of Service or their performance.
If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or removed to the minimum extent necessary so that these Terms of Service will otherwise remain in full effect.
- Amendments to these Terms of Service
These Terms of Service may be amended or replaced from time to time, with or without prior notice to Users, by posting an updated version on the Website. Any updated Terms of Service Agreement becomes effective as soon as it is posted. However, if any updated Terms of Service constitutes a material adverse change to the Terms of Service, CaringLife will take reasonable steps to post an announcement on the Website or otherwise contact you. Your continued use of the Service or Website following any amendment constitutes your acceptance of any updated Terms of Service. If you do not agree to any updated Terms of Service you must cease use of the Service and cancel your Account.
- Questions and Comments
The Privacy Officer
Nautilus Media Group Pty Ltd PO Box 1004
Brighton Road Victoria 3184
or by email to: email@example.com