AGREEMENT – PARENTS AND OTHER NON-PROFESSIONAL USERS
Effective Date: 18 December, 2020
The OurFamilyWizard website (“Site”) and mobile application (“App”) (together, “Platforms”) are operated by Avirat, Ltd (“we,” “us,” or “our”), a limited company registered in England and Wales under company number 9469079 whose registered office is at c/o Redfern Legal LLP, 7 Henrietta Street, London WC2E 8PS. Our VAT number is 216 3016 50.
This agreement (“Agreement”) is between us and you (“you” or “your”), and governs your use of the Site (whether as a registered user or a guest) and the App including, without limitation, browsing, accessing and/or otherwise using any information, data, content, design, text, graphics and interfaces on the Platforms (excluding any information or data provided by you) (“Content”) or any services provided through the Platforms (including standard subscription services and premium features) (a “Subscription”), registering to use and purchasing a Subscription and downloading and installing the App.
Any rules or policies applied by any app store provider or operator (“App Store”) from whom you downloaded the App (“App Store Rules”) are incorporated into this Agreement by reference but in the event of conflict, the terms of this Agreement shall prevail. This Agreement is between you and OurFamilyWizard only. OurFamilyWizard is solely responsible for the Platforms. Apple, Inc. and Alphabet, Inc. and Amazon.com Services, LLC are not a party to this Agreement; however, Apple, Inc., Alphabet, Inc., and Amazon.com Services, LLC and their subsidiaries are third party beneficiaries of this Agreement as it pertains to the App. As such, once you accept this Agreement, Apple, Inc. Alphabet, Inc., and Amazon.com Services, LLC shall have the right to enforce this Agreement against you as they pertain to our App.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE COMPLETING YOUR REGISTRATION AND/OR USING THE PLATFORMS AND/OR DOWNLOADING AND INSTALLING THE APP. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE PLATFORMS.
By accessing or using the Platforms, or by downloading and/or installing the App, you agree to the terms and conditions contained in this Agreement.
We may revise this Agreement at any time by amending this page. Please check this page from time to time to take notice of any changes we have made as they are binding on you.
We do not guarantee that the Platforms or the Content will always be available or be uninterrupted. We will not be liable to you if for any reason any of them is unavailable at any time or for any period. For registered users, we will use reasonable efforts to promptly remedy any faults with the Platforms of which we become aware. For guest users, access to the Platforms is only permitted on a temporary basis. For all users, we may suspend, withdraw, discontinue or change all or any part of the Platforms without notice.
We may update the Platforms from time to time and may change the Content at any time. However, please note that any of the Content may be out of date at any given time and we are under no obligation to update it. We do not guarantee that the Platforms or the Content will be free from errors or omissions.
You are responsible for making all arrangements necessary for you to have access to the Platforms including (without limitation) configuring your information technology and software in order to do so. Any compatibility requirements for the Site will be detailed on the Site. The App may be downloaded or streamed to your mobile telephone or handheld device (“Device”) and any compatibility requirements will be detailed on the relevant App Store page. If we update the Platforms, you may need to update your information technology and software in order to continue using them.
The App may be downloaded free of charge from an App Store, however, please note that the use of the App and the Platforms on any Device will be subject to any rates and fees charged by your wireless communications services provider.
All information you provide to us through the Platforms must be current, accurate and complete. If we at any time discover any error or omission in the information you provide to us, we may, at our option, terminate your right to access and use the Platforms.
B. No Reliance
The Platforms are not a substitute for the professional advice of a solicitor, mediator or other legal professional. We do not give legal advice, nor do we provide legal services, and in each case the Content and Platforms should not be treated as such. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the Content. You acknowledge that your reliance upon the Platforms and any Content is solely at your own risk.
A password or another form of authentication (“Authentication Method”) is required to access and use the Platforms. You are solely responsible for: (1) maintaining the strict confidentiality of the Authentication Method assigned to or created by you; (2) instructing any person to whom you disclose your Authentication Method not to disclose it to another person or allow another person to use it to access any part of the Platforms without your express permission; (3) any access to or use of the Platforms through your Authentication Method; and (4) any charges, damages or losses that may be incurred or suffered as a result of your failure, or the failure of any person using your Authentication Method, to maintain the strict confidentiality of the Authentication Method.
You must promptly inform us in writing of any unauthorised use of your Authentication Method or of any need to deactivate an Authentication Method due to security concerns. You are liable for any unauthorised use of the Platforms until you do so.
We are not liable for any loss or damage arising out of or in connection with the authorisation, disclosure or theft of your Authentication Method. We have the right to disable your Authentication Method and/or your account at any time, if in our reasonable opinion you have failed to comply with any of the provisions of this Agreement.
D. Permitted Account Users
A Parent Account gives you access to and use of our standard Subscription but also allows you to give others limited access to the Platforms, namely the ability to view some or all of the information or data in your account and/or the ability to correspond with others who are linked to your account.
Permitted account users include the child or children whose life and information you wish to manage and other family members such as grandparents or childcare providers.
Permitted account users are required to accept the terms and conditions contained in this Agreement when registering to use the Services, save that Sections I and J will not apply to them. Any parent subscriber accepts them on behalf of their child or children.
Parent subscribers are also responsible, however, for the failure of their permitted account users (particularly any child to whom access is permitted) to comply with the terms of this Agreement.
A Parent Account also lets you link your account to that of your legal representative and/or a mediator assisting with your relationship breakdown or child’s or children’s residence and contact arrangements. Your legal representative will need to accept similar terms and conditions applicable to professional users.
E. Ownership, Licence and Use of Intellectual Property
We are the owner or the licensee of all intellectual property rights (including, without limitation, all copyright and trade marks) in the Platforms and the Content. Those works are protected by laws and treaties around the world. All such rights are strictly reserved.
Subject to the terms of this Agreement, and only during the term of this Agreement, we hereby grant, and you hereby accept, a limited, non-exclusive, revocable, non-transferable licence to use the Platforms and the Content for the purpose of using your Subscription only. You may download the App to your Device but we remain owners of the App and the Content.
You may make or print copies, and may download extracts, of any pages on the Platforms solely for your personal, non-commercial use. Any Content you download or print may not be altered in any way, and must respect all intellectual property rights and notices wherever contained in the Content. You agree that you will not copy, modify, alter, revise, paraphrase, display, store, sublicence, publish, transmit, sell, rent, lease or otherwise transfer or distribute the Platforms or the Content, or any part of them, or create derivative works from them, except as specifically authorised in this Agreement. You further agree not to modify in any way, or delete, any warnings, notices, liability limitations, or other licence provisions contained on the Platforms or in any Content.
No other rights or licences, whether express, implied or otherwise, are granted or intended by this Agreement. ANY UNAUTHORISED OR UNAPPROVED USE OF THE PLATFORMS OR THE CONTENT MAY CONSTITUTE INFRINGEMENT OF OUR, OR OUR LICENSEE’S, RIGHTS, FOR WHICH YOU MAY BE LIABLE FOR CIVIL AND CRIMINAL PENALTIES UNDER APPLICABLE LAWS AND REGULATIONS.
In the event of any third party claim that the Platforms infringe that third party’s intellectual property rights, OurFamilyWizard, not Apple, Inc. nor Alphabet, Inc. or Amazon.com Services, LLC, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
You may link to the Site’s home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. We reserve the right to withdraw linking permission without notice.
The Site must not be framed on any other site, nor may you create a link to any part of the Site other than the home page. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
Where the Site contains links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources.
We do not guarantee that the Platforms will be secure or free from bugs or viruses. You should use your own virus protection software.
You must not misuse the Platforms by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Platforms, the server on which the Site is stored or any server, computer or database connected to the Platforms. You must not attack the Platforms via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Platforms will cease immediately.
I. Subscription, Fees and Payments
A subscription to the System can be purchased through the Site (the “Subscription”). Your use of the System is subject to your payment of a subscription fee, plus applicable taxes (the “Subscription Fee”) for the term selected (the “Subscription Period”). By purchasing a Subscription or any optional premium feature, you authorise OurFamilyWizard or its service provider to charge you via your selected payment method immediately. You have 30 days from the date of purchase of a Subscription or premium feature to receive a full refund. No refunds will be granted after the initial 30 days have passed.
Your Subscription and premium features will automatically renew for an additional Subscription Periods of the same length unless you cancel the auto-renewal as set forth in Section J below. Upon expiration of your Subscription, you will receive two (2) grace logins to allow access pending your renewal. Thereafter, a renewal payment is required before further access to the Platforms is granted. You may elect to use additional premium features to your Subscription at additional cost, such as increased MyFiles™ storage space and ToneMeter™. The annual price for each of these is set out on the relevant feature description pages. If you order a feature partway through a Subscription Period, you will pay a proportion of the price calculated on a daily basis for the period starting with your order until the end of the Subscription Period. Payment for any of these features is made at the time of ordering.
Payments may be made using the following debit or credit cards only: Visa, MasterCard, American Express, Discover, Diner’s Club, Carte Blanche, Maestro UK. Any prices include VAT (where applicable) at the applicable current rate chargeable in the UK for the time being.
A Parent Account gives access to and use of the standard Subscription to you only as set out on the Platforms. It allows you to give others limited access to the Platforms as described in Section D above. However, if a second parent requires full access to and use of the standard services offered under a Subscription, they will be required to purchase a Subscription themselves.
You may cancel the auto-renewal of a Subscription or premium feature through your account settings, or by contacting customer service at firstname.lastname@example.org or telephone us on +44 (0) 203 514 0008,.
K. Acceptable Use
You may use the Platforms only for lawful purposes. You may not use the Platforms: (1) in any way that breaches any applicable local, national or international law or regulation; (2) in any way that is unlawful or fraudulent; (3) to transmit or send any unsolicited or unauthorised advertising or promotional material; or (4) to upload or send any information, data or material which does not comply with the standards below. You are liable to us for any loss or damage we suffer as a result of your breach of this Section K.
Any information or data you upload to the Platforms and any material in any correspondence you send through the Platforms must: (1) be accurate; (2) comply with any applicable law; (3) not be (or be likely to be) defamatory, obscene, offensive, hateful, upsetting, embarrassing, alarming, inflammatory, violent, sexually explicit, discriminatory, illegal or in breach of any legal duty to any third party (e.g. breach of confidence); (4) not infringe the intellectual property rights of any third party; (5) not impersonate anyone or misrepresent your identity or an affiliation with or endorsement by anyone (including us); and (6) not invade or threaten anyone’s privacy.
Where we determine, in our discretion, that you have failed to comply with this Section K, we will take such action as we consider appropriate. This may include, without limitation, terminating or suspending your right to use the Platforms, disclosing information to law enforcement authorities as we reasonably feel is necessary, or taking legal action against you for any loss or damage we suffer, and for reimbursement of the costs we incur on an indemnity basis (including, but not limited to, reasonable administrative and legal costs), as a result of your failure.
We will not be responsible, or liable to any third party, for the content or accuracy of any information, data or material uploaded or sent by you or any other user of the Platforms.
L. Confidential and Personal Information
The Platforms and your Subscription enable you to transmit, store, receive and process confidential and/or personal information regarding you, your family and/or other persons. You represent and warrant that you have all rights necessary to receive, use, transmit and disclose all information that you use in any way with the Platforms.
At all times during the term of this Agreement and after its termination: (1) you agree to comply with all applicable laws governing the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance and storage of this information and use your best efforts to ensure that all persons or entities under your direction or control comply with such laws; and (2) you are solely responsible for obtaining and maintaining all necessary or advisable consents to carry out these activities through the Platforms.
M. Disclosure and Privilege
You agree that English law and court procedure relating to disclosure and privilege apply to any information transmitted, stored, received and processed through the Platforms. You should take legal advice on such matters. We are not liable to you for the disclosure of any such information in compliance with a court order.
THE PLATFORMS ARE PROVIDED TO YOU ON AN “AS IS, WITH ALL FAULTS” BASIS, AND YOUR USE OF THE PLATFORMS IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE DO NOT GIVE ANY REPRESENTATION, WARRANTIES OR UNDERTAKINGS IN RELATION TO THE PLATFORMS, THE CONTENT AND YOUR SUBSCRIPTION. Any representation, condition or warranty which might be implied or incorporated into this Agreement by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Platforms are suitable for your purposes.
O. Limitation of Liability
We only provide the Platforms for domestic and private use. You agree not to use them for any commercial OR business purposes.
UNDER NO CIRCUMSTANCES WILL WE, OR ANY OF OUR PROVIDERS, BE LIABLE TO YOU OR ANY OTHER INDIVIDUAL OR ENTITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR: (1)(A) ANY LOSS OF PROFITS, SALES, BUSINESS, OR REVENUE, (B) LOSS OR CORRUPTION OF DATA OR INFORMATION, (C) LOSS OF BUSINESS OPPORTUNITY, (D) LOSS OF GOODWILL, OR (E) ANY INDIRECT OR CONSEQUENTIAL LOSS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE USE OF THE PLATFORMS OR THE SERVICES (BY YOU OR ANYONE USING OR ACCESSING YOUR ACCOUNT WITH YOUR CONSENT) OR ANY OTHER FAILURE TO PERFORM BY US OR OUR PROVIDERS; OR (2) RELIANCE ON THE CONTENT BY YOU OR ANYONE USING OR ACCESSING YOUR ACCOUNT WITH YOUR CONSENT; OR (3) ERRORS, INACCURACIES, OMISSIONS, DEFECTS, UNTIMELINESS OR SECURITY BREACHES, WHETHER IN RELATION TO THE PLATFORMS, THE CONTENT OR THE SERVICES; OR (4) FOR ANY OTHER MATTER FOR WHICH WE STATE WE ARE NOT RESPONISBLE UNDER THIS AGREEMENT. THESE EXCLUSIONS SHALL APPLY REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
SUBJECT TO THE ABOVE, OUR TOTAL LIABILITY TO YOU IN RESPECT OF ALL LOSSES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE FEES YOU PAID TO US DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED WHICH GAVE RISE TO YOUR CLAIM. YOU AND WE AGREE THAT THIS LIMITATION OF LIABILITY IS AN ALLOCATION OF RISK BETWEEN YOU AND US WHICH CONSIDERS THE FEES WE CHARGE YOU TO USE THE SERVICES. YOU ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
Nothing in this Agreement shall limit or exclude our liability for: (1) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors; (2) fraud or fraudulent misrepresentation.
P. Force Majeure
We are not liable to you for any delay or failure to perform our obligations under this Agreement or the Services as a result of an event beyond our reasonable control including, without limitation, an act of God, natural disaster, terrorist attack, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm or other extreme adverse weather, or interruption or failure of utility service or electronic communications networks. In such circumstances, we shall be entitled to a reasonable extension of the time for performing such obligations.
You shall indemnify and hold us harmless from any liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses incurred by us arising out of or in connection with: (1) use of the Platforms and the Services by you or any other person using or accessing your account with your consent; and (2) the unauthorised or unlawful use of the Platforms, the Services, the Content or any personal information provided or accessible by you or any other person using or accessing your account with your consent.
R. Termination of Agreement
We may terminate this Agreement and/or your right to use the Platforms and/or the Services at any time if you commit any breach of this Agreement or create any potential legal exposure for us.
On termination or cancellation of this Agreement, you must immediately delete or remove the App from your Devices, and immediately destroy all copies of the App and Content then in your possession, custody or control and certify to us that you have done so.
Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities that have accrued up to the date of termination or expiry.
Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement, including (without limitation) Sections H, L, M, N, O, and Q-X (inclusive), shall remain in full force and effect.
We may at any time assign any or all of our rights under this Agreement. You may not assign your rights under this Agreement without our prior written permission. Any attempt by you to assign your rights under this Agreement without our permission shall be void.
If we fail or delay to exercise any right or remedy provided under this Agreement, this shall not constitute a waiver or restrict us from exercising that or any other right or remedy. No single or partial exercise of such right or remedy shall restrict us from exercising that or any other right or remedy.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary to make it valid, legal and enforceable without affecting the validity and enforceability of the rest of this Agreement.
V. Third Party Rights
No third party shall have any right to enforce this Agreement other than any member of our group, which means our subsidiaries, our ultimate holding company and its subsidiaries, each as defined in section 1159 of the Companies Act 2006.
W. Entire Agreement
This Agreement constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, warranties, representations, understandings and communications relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. You agree that you shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
X. Law and Jurisdiction
This Agreement, its subject matter and formation (and any non-contractual disputes or claims), are governed by English law. You and we both agree that the courts of England and Wales will have exclusive jurisdiction. You may also submit a complaint through the EU’s Online Dispute Resolution platform but this shall not prevent either of us commencing or continuing court proceedings in relation to any matter.
Y. Contact Information
To contact us with any questions or inquiries about these Terms & Conditions, please email us at email@example.com or telephone us on +44 (0) 203 514 0008.