1.1 Purpose of this document
This document sets out the terms for using the Application, including any upgrades that replace or supplement the original licensed Application.
The Parties acknowledge that this EULA is between you and Courageous Kids Pty Ltd (ABN 70 641 072 960), and no other person or organisation, including Google.
1.2 Your consent
You accept the terms in this document by doing any of the following:
- downloading a copy of the Application from the Google Play Store;
- downloading any Base Story; and
- continuing to use the Applicationafter any upgrades are installed.
1.3 Defined Terms etc
Capitalised words in this Agreement and the rules for interpreting this document are set out in the definitions and interpretation section at the end of this document.
1.4 Other documents which contain rights and obligations
1.5 Updates to this EULA
If you choose to make further purchases from us, including in-App purchases, or if you choose to upgrade the App, then we may agree to do so on condition that you accept an updated version of these Terms.
1.6 Contacting Us
You may direct any questions, complaints, or claims with respect to the Application to us using the following details:
|Mail:||Customer ServiceCourageous Kids Pty Ltd44 MacFarlan StreetSOUTH YARRA VIC 3141|
2.1 Advertised Purchase Prices
We advertise the purchase price for the Application in the Google Play Store.
We also advertise the price of particular Base Stories, Groups of Base Stories, and educational games in the Google Play Store and through the Application.
2.2 Obligation to Pay
You must pay the relevant advertised purchase price in consideration for the relevant licences granted in this EULA.
Unless the context clearly requires otherwise, the advertised prices for the Application are in Australian dollars.
The advertised prices for the Application include GST.
3.1 Licence to Use the Application
We grant a non-exclusive licence to you to use the Licensed Works on any Android device that is owned or controlled by you and each Associated User for the Permitted Purposes in accordance with this Agreement.
3.2 Scope of Licence
The licence granted in Clause 3.1 is –
- worldwide (to the extent that you may use the Licensed Works on any Android device that you own or control anywhere in the world);
- non-exclusive; and
- royalty free;
and you may not sub-license, assign or otherwise transfer it without our prior written permission.
3.3 Permitted Purposes
The licence granted in Clause 3.1 is strictly for the following purposes, and no other purpose (the ‘Permitted Purposes’):
- browsing for, and purchasing, Base Stories for use with children who are in your care;
- customising Base Stories by selecting the Supplied Images or entering photographs or illustrations supplied by you which are representative of the children who are in your care and the circumstances of those children;
- customising Base Stories by entering information in the form of text relevant to the children who are in your care;
- displaying Customised Stories on your device;
- printing your Customised Stories;
- playing games which we make available on the Application;
- using the scheduling or timetabling tool available on the Application; and
- performing any other activities which are reasonably incidental or necessary to carry out the above purposes.
3.4 Reservation of Rights
We reserve all rights in and to the Application, the Base Stories, the Customised Stories and the Supplied Images not expressly granted by, or referred to in, this EULA.
To avoid doubt, you must not:
- reproduce or otherwise use any Base Story or Customised Story for any purpose other than a personal use for a child or children in your care;
- reproduce or otherwise use any Supplied Image outside of the Customised Story;
- sell, rent or lease the Application, any Base Story, Customised Story, or Supplied Image to any third party;
- host the Application for use by any third party;
- do anything which would allow or enable the Application to be copied by any thirdparty;
- reverse engineer, decompile, or disassemble the source code of the Application;
- alter or edit the Application’s source code for any purpose, including the purpose of improving or fixing it;
except to the extent that any applicable law expressly permits such activity despite this Clause.
3.6 Withdrawal of Licences in Certain Circumstances
The licences granted in this EULA automatically cease if, due to your act or omission:
- we do not receive the purchase price;
- the purchase price is withdrawn from us (for example as a result of a credit card charge back application); or
- we are required to refund the purchase price to you.
4. Your Obligations when using the Application and the Stories
4.1 Exercising Independent Judgment
You must exercise your independent judgment and knowledge of each child in your care when using our products. This includes:
- only choosing a Base Story if you believe it is suitable for the child in your care; and
- only inserting relevant and appropriate User Content into each Base Story.
4.2 Monitoring Use
You acknowledge that the Application is primarily designed to assist you to help children in your care, and that it is not to be used for entertainment or child-minding purposes. As such, you must ensure that your child is using screens for time periods which are suitable for their age.
5. Maintenance and Support, Etc
5.1 Support and Maintenance
We agree to ensure that the Application works on the Android device on which it is purchased at the time that it is downloaded.
You acknowledge that updates and upgrades to the Android operating system, or your choice to use a different device or hardware may cause the Application to cease working, or cease working as intended. Although we may take steps to ensure that the Application continues to work as intended, we are under no obligation to do so.
If you require support for the Application, please submit support requests via email to email@example.com. We will endeavour to respond to all support requests within 10 days.
5.2 Upgrades and Updates
We have the right to provide upgrades and updates to the Application from time to time, and to release additional stories. We are under no obligation to:
- upgrade or update the Application; or
- release additional stories;
on any particular schedule, or at all.
6. Data and privacy
6.2 Personal Information of Children
You must not submit any Personal Information of a child through the Application unless you are the parent or legal guardian of that child, or you have the permission of the parent or legal guardian of that child.
7. Intellectual Property
7.1 Ownership of Intellectual property in the application, and content etc
Except as provided in this Clause 7, nothing in this EULA confers or transfers the ownership of any intellectual property to you, including intellectual property in –
- the source code or object code associated with the Application;
- the Base Stories and Supplied Images;
- any Trade Mark;
7.2 Your authority to Submit End User Content
You must not –
- enter or submit any User Content; or
- allow any User Content to be entered or submitted;
through the Application unless you own that User Content, or are otherwise authorised to enter or submit it.
You warrant and represent to us that you own or are otherwise authorised to enter or submit all User Content into the Application.
7.3 No New Work
You agree and acknowledge that any User Content that is contributed to any Customised Story –
- by you; or
- on your behalf;
- form a substantial part of the Customised Story; or
- create a work of joint authorship within the meaning of the Copyright Act 1968 (Cth).
7.4 Licence to use User Content owned by you
If you contribute User Content to the Application or any Customised Story, you grant us a licence to –
- publish; and
that User Content to the extent reasonably necessary for us to exercise our rights and perform our obligations under this EULA. This licence is referred to in this EULA as the ‘User ContentLicence’. The User ContentLicence is:
- transferrable at will;
- royalty-free; and
8. Warranties and Representations by Us
8.1 The Nature of OUR STORIES
A ‘social story’ is a social learning tool that supports the meaningful exchange of information between adults and children. Social stories can be used to help children to learn socially appropriate behaviour and responses, and to build resilience and confidence in unfamiliar situations. All our stories are designed to aid communication between adults and children and help children understand what is planned or expected of them.
The concept of social stories was first devised by Carol Gray, who specified strict rules regarding composition, sentence structure, and message content. While many of our stories comply with these strict guidelines, some do not, and therefore do not fall within the technical definition of a social story. As such, we do not warrant, or represent, or guarantee that all of the Base Stories have been written to comply with Carol Gray’s specifications, and as such do not represent, warrant or guarantee that they all fall within the technical definition of a ‘Social Story’ as defined by Carol Gray.
8.2 No Association or Affiliation with Carol Gray
We are not associated, affiliated or connected with Carol Gray in any way, and our products are not associated, affiliated or approved of by her. We understand that Carol Gray may use the term ‘Social Stories’ as a trade mark in the United States, but we are using the term as a descriptive term and not a trade mark in Australia.
Social stories have been used for decades around the world and are widely believed to be beneficial to children’s wellbeing and development. Other explanatory stories may also be helpful. However, there has been insufficient research to make scientific claims about the efficacy or therapeutic effect of the stories. We cannot – and do not – make any representations, claims or warranties regarding the efficacy or the therapeutic nature of the Customised Stories or the Application.
8.4 Validity of the Licence
We warrant and represent to you that we have the right to grant the licence in Clause 3.1.
8.5 Compatible devices
We do not warrant or represent that the Application is compatible with every Android device. In particular, the Application is generally designed to work on mobile handheld devices such as iPhones and iPads, and will not work on Apple personal computers such as the iMac, and notebooks such as the MacBook Pro and MacBook Air.
8.6 Statutory Terms
The laws in force in Victoria imply certain terms into contracts such as these which cannot be excluded. Such terms include guarantees that goods are of acceptable quality.
Such guarantees form part of this EULA, and nothing here is intended to exclude, restrict or modify those terms or our liability to you for breach of those terms.
8.7 US Legal Compliance
You represent and warrant that:
- you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a ‘terrorist supporting’ country; and
- you are not listed on any U.S. Government list of prohibited or restricted parties.
Subject to our obligation under law not to exclude or restrict our liability to you, we exclude all liability to you for any loss, injury, harm, damage, claims or costs (including legal costs) relating to the Application and the Base Stories by us, including –
- the posting or continued publication of any User Content;
- the unavailability of the Application; or
- the loss, deletion, removal or modification of any User Content;
of whatever nature, whether indirect, incidental, special or consequential loss or damage or otherwise, including loss of business or other profits), and however arising, whether through –
- the law of negligence or tort generally;
- breach of contract;
- breach of statutory duty;
Where liability cannot be excluded, our liability to you is limited to –
- the supplying of the goods again; or
- the cost of having the relevant goods supplied again.
9.3 Choice of Remedy
We have the right to choose the remedy under Clause 9.2 above unless the law requires otherwise.
10. Third Parties to this Agreement
10.1 Obligation to Secure Incidental Services
You must secure all third-party goods and services necessary for you to use the Application, including Internet access.
You must comply with all applicable third-party terms of agreement when using the Application. For example, you must not be in violation of any agreement to provide you with Internet access when using the Application.
10.2 Status of Google
The Parties acknowledge and Agree that:
- this EULA is between you and us only, and that Google is not a party;
- Google is not responsible for, and has no liability whatsoever under this EULA.
This EULA is intended to be consistent with the Google Play Developer Distribution Agreement (https://play.google.com/about/developer-distribution-agreement.html). In the event of any unavoidable inconsistency between this EULA and that agreement, the Google Play Developer Agreement prevails.
11. Resolution of Disputes
Any and every dispute between us that is not resolved through negotiation conducted in accordance with the procedures set out below must be referred to, and finally resolved by, arbitration administered by the Australian Disputes Centre (the ‘ADC’).
11.2.Notices of Dispute
If a dispute arises, any aggrieved party may serve a notice in writing (a ‘Notice of Dispute’) on the other under this Clause 11. To be valid, each Notice of Dispute must:
- briefly detail the alleged facts which give rise to the dispute;
- set out the remedy or resolution sought; and
- explain the legal basis upon which the remedy or resolution is claimed.
Upon receipt of a Notice of Dispute, both Parties must use their best efforts to resolve our differences through good faith negotiation.
11.4 Referral for arbitration
If the dispute is not resolved within 14 days of the service of the Notice of Dispute then, unless both Parties agree in writing to –
- extend the deadline; or
- adopt an alternative dispute resolution mechanism (such as mediation, conciliation or expert determination);
either of us may refer the dispute to be resolved through arbitration.
11.5 Rules for the Arbitration
Unless both Parties agree otherwise in writing, the arbitration must be administered by the ADC in accordance with the ‘ADC Rules for Arbitration’ which are operating at the time the matter is referred for arbitration. Both Parties agree that these rules are incorporated into this Agreement.
11.6 Place of arbitration
Unless both Parties agree otherwise in writing, the arbitration must be conducted in Melbourne, Victoria.
12.1 Governing Law
These Terms are governed by the laws in force in the State of Victoria, Australia, and – subject to the requirements of Clause 12 – you submit to the jurisdiction of:
- the courts and tribunals of that State, and
- courts of appeal outside of Victoria which have jurisdiction to hear appeals from that State.
These Terms and the documents referred to in it make up the entire agreement between the Parties regarding the use of the Licensed Works, and they supersede any prior agreements, understandings and arrangements.
If any of this EULA are found to be unenforceable, the remaining terms will remain in full force and effect.
12.4 Waivers, Etc
A delay or failure to enforce this EULA does not amount to a waiver of our rights.
Any waiver of this EULA by us must be made in writing and signed by us. The waiver is only valid with respect to the particular instance or instances specifically referred to in the waiver.
12.5 Transfers, Etc
You have no right to transfer or sub-license any of your rights or obligations (including any membership) under this EULA to anyone else without our prior written consent.
We have the right to transfer or sub-license all of our rights and obligations under these terms upon written notice to you.
13. DEFINITIONS AND INTERPRETATION
In this Agreement, the following words have the following meanings:
‘ADC’ has the meaning defined in Clause 11.1.
‘Application’ means the software application which is promoted under the Trade Marks.
‘Base Story’ means each customisable fictional story paid for by you and supplied by us to you through the Application.
‘Customised Story’ meanseach Base Storythat includes text and images selected, entered or uploaded by you using the Application or otherwise.
‘Licensed Works’ means, the Application, each Supplied Image, each purchased Base Story, and each Customised Story.
‘Notice of Dispute’ has the meaning defined in Clause 11.2.
‘Permitted Purposes’ has the meaning defined in Clause 3.3.
‘Personal Information’ means information that identifies you or could be used to identify you.
‘Supplied Image’ means any illustration or other graphical representation of any person or thing which is supplied by us for the purposes of inclusion in any Customised Story.
‘Trade Mark’ means any mark, whether registered or unregistered, which is comprised of, features or includes –
- the words ‘Courageous Kids’;
- the domain name courageouskids.com.au;
- our lion head device;
- our lion device; and
- the paw print device.
‘User Content’ means any text, image or other information which you (or people accessing the Application through your device) enter, contribute, upload, or otherwise insert into the Application (including any Base Story).
‘User Content Licence’ has the meaning defined in Clause 7.2.
This Agreement is governed by the following rules of interpretation:
A reference to ‘we’, ‘us’ or ‘our’ is a reference to Courageous Kids Pty Ltd (ABN 70 641 072 960).
A reference to a ‘Party’ or ‘either Party’ is (depending upon the context) is a reference to either you or us.
A reference to the ‘Parties’ is a reference to you and us.
A term defined in the singular has the corresponding meaning when used in the plural, and vice versa.
A reference to a person includes a reference to a group of persons or an incorporated body.
A reference to ‘these terms’, or ‘this agreement’ or this ‘EULA’ means the terms and conditions set out in this document, and any document incorporated by reference.
This document was prepared by Epiphany Law Pty Ltd, which is a Trademark and IP Law Firm based in Melbourne, Australia.