Provider Terms and Conditions

1. Definitions and Interpretation

1.1 Definitions

In these Provider Terms and Conditions, unless otherwise defined in the Commercial Terms or End User TCs:

Agreement means the agreement consisting of:

1.    Commercial Terms;
2.    these Provider T erms and Conditions;
3.    End User TCs;
4.    and any schedules and/or annexures as may be attached hereto from time to time.

Approvals means any certificate, licence, consent, permit, approval or other requirement of any Authority having jurisdiction in connection with the activities contemplated by this Agreement.

Associate means an ‘associated entity’ as that term is defined in section 50AAA of the Corporations Act 2001 (Cth).

Authority means any government, semi-governmental, statutory, administrative, fiscal or judicial body, department, commission, authority, tribunal, public or other person.

Business Day means a day on which financial institutions are generally open for business in New South Wales, not including a Saturday or Sunday.

Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.

Commencement Date means the agreed date upon which OWNA agrees to commence providing the Services or if a date cannot be agreed, the date of this Agreement or, if not listed, then the date the last of the parties signs the Agreement.

Commercial Terms means the commercial terms form to which these Provider Terms and Conditions are attached.

Default Rate means 10% per annum, or the maximum rate allowed by applicable law, whichever is lower.

Disbursements means money which OWNA is liable to pay on behalf of the Provider for the purpose of performing the Services or providing the Platform and may include (without limitation):

1.    third-party supplier, subsidy, processing or billing fees;
2.    approval fees and charges;
3.    dishonour fees;
4.    merchant fees; and
5.    any other fees reasonably incurred by OWNA.

End User Terms and Conditions (or End User TCs) means the end user terms and conditions governing the use of the Services in Schedule 1.

Event of Default means an event of default described in clause 8.1.

Excluded Services means the services expressly excluded from being provided under this Agreement by OWNA as described in the Commercial Terms

Force Majeure Event means an act of God, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, pandemic (including COVID-19), epidemic, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.

GST has the meaning given to that term in the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Initial Term means the initial term of this Agreement as defined in the Commercial Terms.

Insolvency Event means the happening of any one or more of the following events:

1.    in relation to a natural person:
   1.    that person being unable to pay his or her debts as and when they fall due;
   2.    an application and filing for bankruptcy being made in respect of that person; or
   3.    a receiver, or receiver and manager, trustee for creditors or trustee in bankruptcy or analogous person being appointed over that person’s assets or undertakings or any of them; or
2.    in relation to a body corporate:
   1.    that body corporate being unable to pay its debts as and when they fall due;
   2.    a receiver, receiver and manager, administrator or liquidator being appointed over that body corporate’s assets or undertakings or any of them;
   3.    an application for winding up or other process seeking orders which, if granted, would render that body corporate an externally-administered body corporate being filed and not being withdrawn within 20 Business Days;
   4.    that body corporate being or becoming the subject of an order, or a resolution being passed, for the winding up or dissolution of that body corporate; or
   5.    that body corporate entering into, or resolving to enter into, a deed of supplier arrangement or an arrangement, composition or compromise with, or proceedings being commenced to sanction such a deed of supplier arrangement or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.

Intellectual Property Rights means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.

Licence means the nature and type of licence selected in the Commercial Terms or if no licence is selected, the nature and type of licence provided by OWNA to the Provider as part of this Agreement. For the avoidance of any doubt, the full scope of inclusions of each type of Licence shall be specified and described on the Platform and/or the Site.

Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.

OWNA means the party described as such in the Commercial Terms.

OWNA Content means all information and materials that may be provided from time to time by OWNA to the Provider in relation to the performance of the Services.

Payment Terms means the terms of payment of the Service Price or any other amounts due and payable by the Provider to OWNA pursuant to this Agreement, as detailed in the Commercial Terms.

Platform means any and all OWNA’s Site, social media accounts, applications, the Software and other technological platform(s) as provided from time to time.

Privacy Policy means the privacy policy located on link.

Provider Data means all documents, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by the Provider to OWNA in relation to the performance of the Services or the Provider’s use of the Platform.

Provider Terms and Conditions means these Provider terms and conditions as annexed to the Agreement.

Quote means a quote for additional and/or bespoke Services or supply of a bespoke Platform may be supplied by OWNA to the Provider, which shall detail the Service Price.

Renewal Term means a renewal term of this Agreement as defined in the Commercial Terms.

Service Price means the price or fee payable by the Provider to OWNA pursuant to this Agreement as detailed in the Commercial Terms or, where applicable, a Quote.

Services means the services described in the Commercial Terms and includes any products provided under this Agreement.

Site means https://www.owna.com.au.

Software means the software as a service provided by OWNA under this Agreement, including (without limitation) the ‘OWNA Childcare Management’ software.

Special Conditions means any special conditions set out in the Commercial Terms.

Term means:

1.    where a ‘Fixed Term’ is applicable in the Commercial Terms, the Initial Term and any Renewal Term of this Agreement; or
2.    where a ‘Subscription’ is applicable in the Commercial Terms, a rolling monthly term.

User has the meaning given to that term in the End User TCs.

1.2 Interpretation

In these Provider Terms and Conditions:

1.    any word not defined in these Provider Terms and Conditions will be given its meaning set out in other components of this Agreement or, if not otherwise define, its ordinary and natural meaning;
2.    in the event of inconsistency the following order of priority applies to the Agreement:
   1.    Special Conditions; then
   2.    Commercial Terms; then
   3.    Provider Terms and Conditions; then
   4.    End User TCs.
3. The End User TCs shall apply to the Provider to the fullest extent as if the Provider assumed the role of a User (or ‘You’, as that term is defined in the End User TCs).

2. General

2.1   OWNA agrees to supply the Services to the Provider on the terms of this Agreement for the Term.

2.2   OWNA will provide the Services in a professional manner, with due care, skill and diligence and in compliance with applicable laws, including the Privacy Act 1988 (Cth).

2.3   The parties agree and acknowledge that, notwithstanding anything stated to the contrary herein, OWNA will not (and will not be obliged to) supply the Excluded Services.

2.4   Any delivery time or milestone OWNA gives the Provider is only an estimate. OWNA is not liable to the Provider for any Loss or Claim arising from late or delayed performance of the Services.

3. Term

3.1   This Agreement will commence on the Commencement Date and, subject to the Commercial Terms, will continue for the duration of the Term. The Agreement will be automatically renewed for further Renewal Terms or monthly subscriptions (as applicable), unless either party notifies the other party no less than thirty (30) days prior to the expiration of the then-current Term of its intention not to renew the Agreement.

4. Service Fee and Costs

4.1   OWNA will invoice the Provider for Services supplied in accordance with the Payment Terms, or at such intervals as determined by OWNA if the Commercial Terms do not specify.

4.2   In the case of the first month of provision of the Services, Service Fees shall be payable within the first two (2) weeks of the grant of access and, thereafter, within a further two (2) weeks in order to reconcile same with the Payment Terms.

4.3   The price of the Services will be the Service Price and is exclusive of GST, or any other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services. In addition to the Service Price payable by the Provider, where required by law, the Provider must pay to OWNA, in accordance with a valid tax invoice issued by OWNA, the GST payable in respect of the supply of the Services.

4.4   Subject to the Commercial Terms, the Provider acknowledges and agrees Service Price may be subject to the number of children enrolled at any given time in the Provider’s centre, location or business. Subject to any applicable laws, the Provider acknowledges and agrees that OWNA shall be permitted to review and/or conduct audits on the enrolment and/or attendance records of the Provider (at any one of its premises or centres) for the purposes of ensuring its compliance with this Agreement.

4.5   Where the Provider has requested an ‘Enterprise’ Licence, it acknowledges and agrees that the Service Price will be provided and detailed separately pursuant to a Quote supplied by OWNA to the Provider.

4.6   Unless the parties agree otherwise in writing, OWNA is entitled to be reimbursed for any Disbursements reasonably incurred in connection with the performance of Services under this Agreement and may do so pursuant to the Payment Terms.

4.7   Subject to the Payment Terms, OWNA will debit the payable Service Fees and any Disbursements via direct debit as and when sums fall due and payable.

4.8   If the debit at clause 4.7 is not successful, OWNA will attempt a further debit of the invoiced amount.

4.9   If the further debit at clause 4.8 is not successful, the Provider’s access to the Platform and Services may (without prejudice to any other rights available to OWNA) be suspended until all sums have been paid.

4.10   The Provider must pay all amounts due to OWNA (whether under this Agreement or otherwise):

1.    pursuant to the Payment Terms;
2.    without set-off, deductions, counter-claims or conditions; and
3.    in available cleared funds.

4.11   If the Provider owes any amount to OWNA (whether under this Agreement or otherwise), OWNA may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:

1.    withhold all future supplies of Services until that amount has been paid in full;
2.    set-off that amount against any amount owing by OWNA to the Provider; and/or
3.    immediately demand all amounts due and payable under this Agreement from the Provider.

4.12   If an amount due under this Agreement is paid after the due date , the Provider must pay OWNA, in addition to the overdue amount:

1.    interest at the Default Rate calculated based on a 365 day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
2.    all costs and expenses incurred by OWNA in collecting the overdue amount (including legal costs).

4.13   The Provider's obligation to pay an amount owing applies notwithstanding any delay in the performance of the Services.

4.14   The parties agree and acknowledge that upon at least ninety (90) days written notice before the anniversary of the Commencement Date, OWNA may increase the Service Price for the then-current Renewal Term.

4.15   If OWNA suspends work due to the Provider's failure to provide Provider Data or any information or instructions reasonably required for OWNA to provide the Services, OWNA may increase the Service Fee to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).

5. Provider Obligations

5.1   To enable OWNA to perform and provide the Services, the Provider must, at the Provider's cost, promptly:

1.    provide OWNA with all Provider Data which is to be used in the performance or provision of the Services;
2.    provide OWNA with all required enrolment and/or attendance information, as reasonably required or requested by OWNA in order to calculate the applicable Service Price;
3.    provide OWNA with all other information and/or Provider Data as is reasonably required for the Provider to use the Platform, as requested by OWNA from time to time;
4.    provide OWNA with all other information, materials and/or data as is reasonably required for OWNA to comply with its obligations pursuant to any applicable laws;
5.    provide OWNA with access to all and relevant information regarding the Services, the Provider and the Provider's business processes and networks which is to be implemented, included or reflected in the provision of the Services;
6.    provide OWNA with reasonable access to the Provider’s personnel as OWNA may reasonably require from time to time.

5.2   The Provider shall satisfy all of its obligations under this Agreement. Any failure by the Provider to perform its obligations shall relieve OWNA of its obligations under this Agreement to the extent that the Provider’s failure prevented OWNA from performing its obligations.

5.3   The Provider shall be responsible for conducting preliminary diagnostic steps or providing additional information prior to requesting any support from OWNA.

5.4   The Provider shall be responsible for providing the required hardware, software and any other materials in order to enable itself to the benefit of receiving the Services.

5.5   The Provider shall be responsible for the application, operation, maintenance and support of its systems, hardware and software and all components thereof including, but not limited to, the implementation of appropriate procedures, training and safeguards and routine backups.

5.6   The Provider must procure and ensure that any of its employees, servants and/or contractors who are permitted to use the Platform and/or receive the Services under this Agreement, comply with the terms of this Agreement at all times. In the event that the rights of those employees, servants and/or contractors to use the Platform or Services are withdrawn or terminated for any reason (including cessation of employment or engagement), the Provider must ensure that it informs OWNA of the same within two (2) Business Days of the occurrence.

5.7   To the extent that OWNA specifies or recommends any preventative maintenance, including updates with respect to the Services, the Provider shall be responsible for such maintenance and updates.

5.8   The Provider warrants to OWNA that it:

1.   has full right, power and authority to enter into this Agreement;
2.   will comply with all laws in connection with the Services;
3.   has all necessary approvals in connection with the Services; and
4.   no Provider Data infringes any third party Intellectual Property Rights or the Privacy Act.

6. Hosting, Maintenance and Support

6.1   OWNA shall use all reasonable endeavours to maintain the Platform in substantial conformity with this Agreement.

6.2   Any ongoing assistance or support provided by OWNA shall only be subject to the terms of this Agreement or otherwise as required in its sole discretion.

6.3   You agree to and acknowledge the following:

1.   the Platform is not error-free and agree that the existence of such errors in the Platform shall not constitute a breach of this Agreement;
2.   the Platform is provided on an ‘as is’ and ‘as available’ basis and, unless otherwise stated to contrary herein, OWNA provides no representations or warranties as to its up-time or performance;
3.   if any third party makes any updates to its own software or platform, such that this causes an issue or disruption in respect of the Platform, then you accept that this is not an issue with the Platform itself, nor a breach by OWNA of any of its obligations under this Agreement. However, OWNA may at its sole discretion, choose to provide any updates to the Platform to address any issues caused by any third party changes;
4.   any changes or updates to the Platform made by OWNA pursuant or in response to a request by the Provider is not an admission of any liability by OWNA;
5.   the Provider shall have in place daily back-up and disaster recovery measures in respect of its systems and data with which the Platform and Services are used, and effective firewall together with virus protection measures, with all associated costs to be borne by the Provider. As between the Provider and OWNA, in the event of any dispute as to the accuracy of any stored data (including Provider Data and/or OWNA Content), the data held and stored by OWNA will be preferred.

6.4   The Provider will host the Platform in an environment which complies with OWNA’s minimum specification requirements, as such requirements may be notified from time to time by OWNA (acting reasonably).

6.5   For the duration of the Term, the Provider will be responsible for and put in place measures in ensuring its infrastructure, hardware and/or software is and remains compliant with OWNA’s minimum specification requirements in line with clause 6.4.

7. Change and Cancellation

7.1 Cancellation

1.   Subject to clauses 4.11 and 8 of this Agreement and Clause 14 of the End User TCs, neither party may suspend or cancel performance of this Agreement without the consent of the other party.

7.2 Change

1.   Either party may request a change to any matter related to the Services, including the performance of any additional services to be supplied by OWNA.
2.   Any change request must be in writing and must give such details, including the price, as will enable the other party to fully consider its impact, if accepted, on the parties' rights and obligations under this Agreement.
3.   Neither party will be obliged to accept any change request made by the other party.
4.   If a change request is accepted, any matter identified in the relevant change request as being affected by that change request (e.g. the scope of the Services) shall be deemed to be immediately amended in the manner specified in the change request.
5.   If a change request is not accepted and negotiations concerning it ensue between the parties which result in an agreed change, the matter identified in the relevant change request as being affected by that change request shall be deemed to be immediately amended, as so agreed, with effect from the date of the written agreement to the change.
6.   Until any change has been effected as specified in clauses 7.2(a) to 7.2(e) inclusive, both parties will continue to fully perform this Agreement as if the requested change had not been made. After a change has been effected as specified in this clause 7, both parties shall continue to fully perform this Agreement as varied only in accordance with that change.

8. Termination

8.1 Events of Default

1.   Each of the following events is an ‘Event of Default’, namely:
   1.   if the Provider fails to pay any amount due and payable under this Agreement on the due date for payment and such failure continues for more than five (5) Business Days;
   2.   either party fails to perform or observe any of the covenants or provisions of this Agreement and (if capable of remedy) such default continues for more than ten (10) Business Days after notice from the non-defaulting party requiring remedy of the breach;
   3.   the Provider sells or closes its business without written notice to OWNA;
   4.   either party suffers an Insolvency Event;
   5.   where the Provider is a partnership and is dissolved, threatens or resolves to dissolve or is in jeopardy of dissolving; or
   6.   the Provider being a natural person dies.

8.2 Termination Rights

1.   If an Event of Default occurs the non-defaulting party may at its option:
   1.   by proceeding by appropriate court action, either at law or in equity, enforce performance of the applicable terms and provisions of this Agreement or recover damages for the breach concerned; and/or
   2.   terminate this Agreement.

8.3 Termination at Will

In addition to clause 14 of the End User TCs, OWNA may terminate this Agreement, with or without cause, upon thirty (30) days’ written notice.

9. Force Majeure

Except for the Provider’s obligations pursuant to clause 4, no party will be liable for any delay or failure to perform its obligations or any condition pursuant to this Agreement (other than an obligation to pay monies) if such delay is due to Force Majeure Event. If a delay or failure of a party to perform its obligations or any condition is caused or anticipated due to a Force Majeure Event, the performance of that party's obligations will be suspended until such time as the party can reasonably comply with its obligations.

10. Miscellaneous

1.   This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements, understandings and communications, whether written or oral.
2.   The parties acknowledge and agree that the Special Conditions (if any) shall apply to this Agreement and each party must comply with its respective obligations regarding those Special Conditions.
3.   The Commercial Terms and these Provider Terms and Conditions may only be varied in writing and signed by the parties.
4.   This Agreement operates as a ‘standing agreement’ and each Licence issued shall constitute a separate contract for supply of Services between the parties and OWNA may enforce its rights under this Agreement against any Commercial Terms, the End User TCs, or the Agreement as a whole.
5.   This Agreement will govern the future supply of Services by OWNA to the Provider, unless this Agreement is amended or varied pursuant to clause 10(c), the End User TCs or a new agreement is entered into between the parties.
6.   Except as required by law, the parties must not disclose to any person without OWNA’s prior written consent the existence of, or details in, this Agreement or any other Provider Data or OWNA Content which is confidential and not otherwise in the public domain.
7.   The Provider may not, without the prior written consent of OWNA, assign, transfer or grant any security interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
8.   OWNA may, without the prior written consent of the Provider, assign, transfer or grant any security interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
9.   If any provision of the Agreement is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.
10.   All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
11.   Clauses 1, 4, 5, 10 of this Agreement and clauses 1, 3, 8, 12, 17 of the End User TCs and any indemnities survive termination or expiration of this Agreement.
12.   The Agreement is governed by and is to be construed in accordance with the laws applicable in New South Wales, Australia.
13.   Any notice or other communication given or served under this Agreement by either party must be:
    1.   in writing;
    2.   if sent by prepaid ordinary post, addressed and sent to the receiver’s contact details (as noted in the Commercial Terms);
    3.   taken to be received:
       1.   if delivered personally, on the date of delivery;
       2.   if sent by prepaid ordinary post within Australia, upon the expiration of three (3) Business Days from the date it is posted; or
       3.   if transmitted electronically, upon receipt by the sender of an acknowledgment that the communication has been properly transmitted to the recipient.
14.   This Agreement shall not create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer- employee, master-servant, principal-agent, trust, or other whatsoever between the parties hereto.

Schedule 1    End User TCs

1. General

1.1   These End User Terms and Conditions (End User TCs) are between You (as a User) and OWNA Corp Pty Ltd (ACN 613 387 474) (‘OWNA’ or ‘our’ or ‘we’) and governs the use of the Platform and Services offered by OWNA.

1.2   OWNA is in the business of providing childcare/early learning management solutions and managing and maintaining childcare centre operations – including child attendance, enrolments, profile management and facilitation of communications and interactions between Provider Users and Users, otherwise known as ‘OWNA’ which is licensed to You.

1.3   Any Service description displayed on the Platform is incorporated into these End User TCs by reference. In the event of inconsistency, these End User TCs prevail.

1.4   By using, browsing and/or reading the Platform, this signifies that You have read, understood and agree to be bound by these End User TCs. If You do not agree with these End User TCs, You must cease usage of the Platform or any of the Services immediately.

2. Registration

2.1   In order to use the Platform, You may be required to register for an Account through the Platform.

2.2   As part of the registration process, or as part of Your continued use of the Platform, You may be required to provide personal information about Yourself (such as identification or contact details), including:

1.   first and last name;
2.   an email address;
3.   preferred username;
4.   a mailing address;
5.   a telephone number;
6.   childcare service details;
7.   a password (which will not be visible to OWNA);
8.   banking details;
9.   Medicare card number;
10.   tax file number;
11.   emergency contact information;
12.   medical or health services provider details;
13.   immunisation records;
14.   language spoken at home;
15.   special requirements;
16.   cultural and/or religious details;
17.   dietary (including allergy) requirements;
18.   medical condition history;
19.   medical requirements;
20.   birth certificate;
21.   copies of any court and/or tribunal orders or documentation relevant to, without limitation, living and/or custody arrangements;
22.   any other details as required by the signatory and/or onboarding letter provided by OWNA to You;

2.3   You warrant that any information You give to OWNA in the course of completing the registration process will always be accurate, correct and up to date.

2.4   You may not use the Platform and procure the Services if:

1.   You are not of legal age to form a binding contract with OWNA; or
2.   You are a person barred from receiving the Services under the laws of Australia or other countries including the country in which You are resident or from which You use the Services.

3. Your Obligations as a User

3.1   As a user of the Platform, in addition to clause 7, You agree to comply with the following:

1.   You will use the Platform and any Services only for purposes that are permitted by:
   1.   these End User TCs;
   2.   policies, procedures and/or guides that may be made available by OWNA via the Platform from time to time; and
   3.   any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions, including the National Law.
2.   You are responsible for all costs and expenses associated with downloading, installing, running, accessing or using the Platform and Services You purchase, including, without limitation, any costs associated with computing hardware, maintenance, server and data storage and internet access;
3.   You warrant and represent that all information and documentation provided as part of any identity verification is true and correct;
4.   You warrant and represent that You have full authority to give the representations in these End User TCs and otherwise are authorised to act as a representative of any third-party (including, if applicable, Your employer or principal contractor);
5.   You have sole responsibility for protecting the confidentiality of Your Account details (including the password and/or email address);
6.   any use of Your Account information by any other person, or third parties, is strictly prohibited. You agree to immediately notify OWNA of any unauthorised use of Your password or email address or any breach of security of which You have become aware;
7.   You must immediately notify OWNA of any changes to Your Account, including Your eligibility to continue using the Platform and/or receive the Services which may be (if applicable) pursuant to Your engagement or employment terms;
8.   You must immediately cease using the Platform and/or receive the Services in the event that the terms of Your engagement or employment, which permitted the use of the Platform and/or receipt of the Services, are severed or terminated;
9.   You must not expressly or impliedly impersonate another user or use the profile or password of another user at any time;
10.   Your Data will always be accurate, correct and up to date and You will maintain reasonable records of Your Data;
11.   You agree not to harass, impersonate, stalk, threaten another user of the Platform (where interaction with other users is made available to You);
12.   You agree not to broadcast, publish, upload, transmit, post or distribute on the Platform abusive or objectionable content, including but not limited to discriminatory, racist, pornographic, threatening or abusive material;
13.   access and use of the Platform is limited, non- transferable and allows for the sole use of the Platform by You;
14.   You will not use the Platform for any illegal and/or unauthorised use which includes collecting email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Platform;
15.   You will not use the Platform in connection with or for any unauthorised use such as the collection of images, videos or data from the Platform for any use not otherwise authorised by OWNA;
16.   You acknowledge and agree that any automated use of the Platform (including via any bots or artificial intelligence) or the Services is prohibited.

3.2   You must not tamper with or hinder the operation of the Platform or Services, nor transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Platform or via the Services.

3.3   You must not perform any penetration testing upon the Platform or perform any testing of the Platform in order to determine and/or assess its capacity.

3.4   The Provider User must keep records of its encrypting keys. The Provider User has the sole responsibility to make sure encrypting keys are kept in a safe and secure place. OWNA shall not be liable for any damages (including damages for inability to restore backup data or the disclosure of confidential information) resulting from loss/corruption/compromise of these keys.

3.5   Breach of this clause 3 may result in immediate termination or suspension of the User Licence without liability.

4. Provider User Obligations

4.1   In addition to those obligations at clause 3, Provider Users warrant and represent that:

1.   the privacy policy used within its organisation in connection with the collection of personal information and/or sensitive information is in compliance with the National Law and the Privacy Law;
2.   it has obtained the express written consent, acknowledgement and agreement from each Family User, in order to:
   1.   supply the Services and/or Platform to that Family User;
   2.   enable the Provider User to collect the personal and/or sensitive information as required for the Service and/or Software to be supplied;
   3.   allow OWNA to collect personal and/or sensitive information about that Family User pursuant to these End User TCs and/or OWNA Privacy Policy;
   4.   collect and obtain photographs of minors on the Platform only; and
   5.   permit OWNA to publish any photographs of minors on the Platform only.

5. User Licence

5.1   Upon the earlier of:

1.   acquiring the Services via the Platform;
2.   agreeing to the End User TCs;
3.   downloading, installing or using the Services and/or Platform; or
4.   using the Platform and/or Services,

You are granted a revocable, non-transferable, non-sub licensable, non-exclusive and limited licence to use the Platform (including the Software) and/or Services strictly in accordance with these End User TCs (‘User Licence’).

5.2   If You do not agree to these End User TCs, You must not install, use, or copy the Platform and/or Services.

5.3   The User Licence will be for the term applicable to the particular Services as detailed on the Platform or otherwise notified to You prior to or at the point of Your order being accepted by OWNA (‘Licence Term’).

5.4   The applicable Licence Term will expire automatically at the conclusion of the Licence Term, unless terminated earlier in accordance with these End User TCs or unless terminated by OWNA pursuant to the Provider Agreement.

5.5   You agree and acknowledge that by agreeing to these End User TCs You agree to use the Platform and/or Services fairly and not for an improper purpose. You acknowledge that OWNA may, in its sole discretion, determine the scope of Your fair use of the Platform and/or Services against the typical usage across its network of accounts. In the event that out of the ordinary usage is detected, OWNA may contact You to discuss potential alternatives. In the event that any alternatives are not complied with, then this shall constitute a breach of these End User TCs and OWNA may, in addition to its other rights in these End User TCs, terminate Your User Licence and/or these End User TCs upon providing no less than five (5) Busines Days’ notice.

5.6   The Provider User agrees and acknowledges that OWNA may require the Provider User to undergo an electronic identity verification process as a condition of the User Licence being licensed, which may require each Provider User to complete additional forms or documents or agree to further terms and conditions. OWNA may from time to time engage a third party for the provision and supply of those identity verification services and OWNA in no way guarantees and/or warrants the due performance of any of those service providers. Nothing in these End User TCs is intended to transfer any Intellectual Property Rights in any software utilised for the purposes of verifying Your identity under this clause 5.6.

6. Delivery of Services

6.1   Performance of the Services and/or the provision of the Platform will occur via electronic means in the manner OWNA deems appropriate in its sole discretion.

6.2   You agree and acknowledge that the Services and/or Platform (or any part thereof) may be supplied based on Your representations and/or Your Data. OWNA assumes no responsibility for any errors in the Platform or its Services which are caused and/or contributed by Your Data and/or Your representations.

7. Licence Conditions

7.1   As a User, these End User TCs entitle You to access and obtain the Services from the Platform.

7.2   You may not assign Your rights and obligations under these End User TCs, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Your rights to the Platform or Services.

7.3   You may not:

1.   decompile, “reverse engineer”, disassemble, decompile, or otherwise attempt to derive the source code for the Platform (including the Software);
2.   broadcast, transmit or otherwise display in a public forum or any venue not restricted to You, the Platform (including the Software) and Services or any part of the same;
3.   post the Platform (including the Software) and or Services or part of the same on any website, unless otherwise expressly (in writing) agreed to by OWNA;
4.   use the Platform (including the Software) or Services for commercial on-selling purposes;
5.   modify the Platform (including the Software) or create any derivative work of the same or their accompanying documentation. Derivative works include but are not limited to translations;
6.   alter any files or libraries in any portion of the Platform (including the Software); or
7.   copy any part of the Platform (including the Software) and/or Services except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.

7.4   You agree and acknowledge that OWNA may, from time to time, modify the Platform and/or Software, including (without limitation) by adding or removing features or functions (Platform Update). Nothing in these End User TCs prohibits OWNA from implementing a Platform Update, provided that the Platform Update, in the reasonable opinion of OWNA, does not materially reduce the functionality of the Platform.

7.5   In the event a Platform Update is implemented by OWNA, You agree and acknowledge that, despite anything stated to the contrary in these End User TCs You may be required to subscribe to access those additional elements of the Platform and/or Services.

8. Intellectual Property

8.1   Unless specified otherwise in these End User TCs or otherwise agreed by the parties in writing:

1.   Intellectual Property Rights owned by You in Your Data will remain Your property, and OWNA acknowledges that nothing in these End User TCs transfers title in or ownership of any Your Data to OWNA;
2.   Intellectual Property Rights owned by OWNA in the Platform, the Services supplied and OWNA Content will remain the property of OWNA, and You acknowledge that nothing in these End User TCs transfers title in or ownership of any content or data in the Platform or the OWNA Content to You;
3.   Intellectual Property Rights in all content developed by the parties in connection with the Services or Platform will vest on creation in OWNA (‘Developed Content’).

8.2   You grant to OWNA an irrevocable, non-exclusive, transferable, royalty free licence to make such use of Your Data as is, in the reasonable opinion of OWNA necessary to provide the Platform and/or Services as set out in these End User TCs and for any other purpose set out in the Agreement and/or the Provider Agreement. You shall indemnify OWNA against all Claims made by third parties to the extent that the use of Your Data by OWNA infringes their Intellectual Property Rights.

8.3   OWNA grants to You a revocable, non-exclusive, non- transferable, royalty free licence to make such use of the Platform during the Licence Term, in the reasonable opinion of OWNA, necessary to complete use of the Services.

8.4   Nothing under these End User TCs shall be construed as a transfer in ownership or title in the Platform, Services and any Developed Content to You.

8.5   OWNA accepts no liability in respect of the Developed Content whatsoever or howsoever arising.

8.6   OWNA is under no obligation to maintain, back-up or store Your Data and/or the Developed Content and You are responsible for regular back-ups and data extraction.

8.7   During the Licence Term, if You send or transmit any communications or materials to OWNA by mail, email, telephone or otherwise, providing feedback or suggesting or recommending changes to the Services and/or the Platform or any OWNA Intellectual Property Rights (Feedback), You hereby assign to OWNA all right, title, and interest in, and OWNA is free to use, without any attribution or compensation to any party (including You), any ideas, know-how, concepts or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although OWNA is not obliged to use any Feedback.

9. Hyperlinks

The Platform may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and OWNA takes no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on our website to another website does not imply OWNA’s endorsement, support, or sponsorship of the operator of that website nor of the information and/or products or services which they provide.

10. Privacy, Security and Data Handling

1.   OWNA’S Privacy Policy and Security Policy is located on the Site and is incorporated into these End User TCs by reference.
2.   You agree and acknowledge that You have read and agreed to the terms of the Privacy Policy.
3.   OWNA represents that personal information and/or personal data is collected, stored, processed and/or secured (as applicable) pursuant to the terms of its Privacy Policy and the Security Policy.
4.   The parties acknowledge and agree that each shall use best endeavours to notify the other party pertaining to any notifiable data breaches pursuant to the Privacy Act 1988 (Cth).

11. Warranties and Exclusions

11.1   Everything on the Platform and incorporated in the Software and/or Services is provided to You “as is” and “as available” without warranty or condition of any kind. To the fullest extent permitted under law, none of the Associates, affiliates, directors, officers, employees, agents, contributors and licensors of OWNA make any express or implied representation or warranty about the Platform or the Services. This includes (but is not limited to) Claims or Loss or damage You might suffer as a result of any of the following:

1.   failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; or
2.   the accuracy, suitability, suitability or currency of any information on the Platform, the Services, or any of its related products and services (including any third party material and advertisements on the Platform).

11.2   No express or implied guarantees, warranties, representations, conditions and/or obligations are provided to You as to the Platform up-time and, pursuant to clause 12 of these End User TCs, OWNA will not be liable for any down time of the Platform for the duration of the Licence Term.

11.3   Provisions of the Competition and Consumer Act 2010 (Cth) and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on OWNA and its affiliates and suppliers (Implied Terms). If these Implied Terms apply, OWNA’s liability will be limited at its option to resupply, repair or replacement of the Platform or Services, or the cost of such resupply, repair or replacement, to the extent permitted by law.

11.4   Nothing in these End User TCs excludes, restricts or modifies Your rights under an Implied Term.

12. Limitation of liability

12.1   Subject to any Implied Term, and to the extent permitted by law, OWNA or any of its officers, employees, contractors or agents will not be liable to You for any Losses incurred by You or Claims made by You as a result of using the Platform or receipt of the Services, deficiencies in data acquisition and any documentation provided to You.

12.2   OWNA’s liability is reduced proportionately in the event that the You contributed to any Claim or Loss suffered by You.

12.3   In addition to the limitations in clauses 12.1 and 12.2, OWNA’s liability in connection with these End User TCs, the Platform, Services and any documentation provided to You is limited to the re-supply of the Platform and/or Services under these End User TCs.

12.4   You agree and acknowledge that OWNA will not be liable for any Losses or Claims arising from the use of the Platform, the Developed Content or any of Your Data generated via the use of the Platform or Services by You or any third parties.

12.5   You agree and acknowledge that You will be responsible for all analysis of Your Data and will indemnify and hold OWNA harmless for any Loss, Claim or damage in connection with the analysis of Your Data.

12.6   You agree to indemnify and hold OWNA harmless against any claims that any of Your Data or Your information constitutes a breach of any applicable laws or in breach of any third party rights (including, without limitation, breaches of intellectual property rights, confidentiality, contractual rights or any privacy laws).

12.7   Subject to anything contrary in this clause 12, You indemnify and hold OWNA harmless to the full extent permitted by law for any Loss, Claim or damage whatsoever or howsoever arising in connection with Your use of:

1.   the Platform;
2.   the Services;
3.   Your Data;
4.   OWNA Content; and/or
5.   Developed Content,

except to the extent that such Loss, Claim or damage was materially caused as a result of OWNA’s fraud, negligence or wilful misconduct.

13. Variation of Terms

13.1   OWNA reserves the right to amend these End User TCs from time to time. Such amendments will be either:

1.   published on the Platform from which the Services were purchased;
2.   emailed to You;
3.   published on any website controlled or operated by OWNA; or
4.   notified to You via email directing You to a link.

13.2   The effect of any amendments will come into force within a period which is no less than two (2) weeks from the date the amendments are published or You are notified pursuant to clause 13.1 or unless stated otherwise by OWNA in any notification.

14. Termination

14.1   OWNA may at any time, terminate these End User TCs and the User Licence:

1.   at its discretion upon thirty (30) days’ written notice;
2.   if You have breached any provision of these End User TCs or intend to breach any provision;
3.   in respect of Family Users, if a Provider User notified OWNA that the Family User is no longer obtaining the services of the Provider User Centre;
4.   if OWNA is required to do so by law.

14.2   You may terminate these End User TCs in Your discretion at any time.

14.3   OWNA reserves the right at any time to modify or discontinue, temporarily or permanently, the Platform and/or Services (or any part thereof) with or without notice.

14.4   On termination, You must permanently remove and return or destroy all OWNA Content and any associated content received so).by You from Your computers or other devices.

14.5   Subject to the terms of any Provider Agreement:

1.   during the Licence Term and for a period of up to thirty- six (36) months thereafter, You will be entitled to undertake a data extraction of Your Data from the Platform, in such form made available by OWNA (e.g. PDF, spreadsheet or otherwise), at no additional cost;
2.   in the event that OWNA retains Your Data after the term, subject to these End User TCs or the Privacy Policy, OWNA may charge a fee, at its discretion, for data extraction or deletion requested by You;
3.   if, within thirty-six (36) months following expiration and/or termination of these End User TCs or the Licence Term (as applicable), you do not undertake data extraction as contemplated by clause 16.5(a), you agree and acknowledge that OWNA may forever destroy and erase Your Data from the Software, without liability, provided it has notified the Provider User no less than thirty (30) calendar days prior to Your Data being destroyed or erased.

15. Sub-Contracting

15.1   OWNA may subcontract the performance or provision of any part of the Services and/or Platform without obtaining the prior written consent from You.

15.2   Unless stated to the contrary herein, where OWNA subcontracts the performance or provision of any part of the Services and/or Platform, OWNA acknowledges and agrees that:

1.   it will be responsible for ensuring the suitability of any subcontractor appointed by it and that the work performed by such subcontractor meets the requirements of these End User TCs; and
2.   it will be liable for any conduct, omission or neglect by any subcontractor appointed by OWNA as fully as if such conduct, omission or neglect were the conduct of OWNA, its employees or agents under these End User TCs.

16. Related Party Services

16.1   You acknowledge and agree that:

1.   OWNA may procure the services of its Associates from time to time, including but not limited to, for the purposes of providing the Services (including other related services);
2.   OWNA’s services are limited to the provision of the Platform and Services;
3.   despite clause 15, OWNA does not engage its Associates as sub-contractor/s and is in no way liable for the acts or omissions of its Associates;
4.   You release, indemnify OWNA and hold it harmless to the full extent permitted by law for any loss or damage whatsoever arising in connection with the supply of the Services to You by its Associates.

17. General provisions

17.1   If any provision of these End User TCs is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.

17.2   You may not, without the prior written consent of OWNA, assign, transfer or grant any security interest over, its right, title and interest in or to these End User TCs to any person (or agree or purport to do so).

17.3   OWNA may, without Your prior written consent, assign, transfer or grant any security interest over, its right, title and interest in or to the End User TCs to any person (or agree or purport to do so).

17.4   All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these End User TCs does not prevent any other exercise of that right or the exercise of any other right.

17.5   These End User TCs shall not create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer- employee, master-servant, principal-agent, trust, or other relationship whatsoever between the parties hereto.

17.6   These End User TCs shall be governed by and construed in accordance with the laws of New South Wales, Australia.

18. Definitions and interpretation

18.1 Definitions

In these End User TCs unless the context otherwise requires:

Account means an account on the Platform as described in clause 2.1.

Associate means an ‘associated entity’ as that term is defined in section 50AAA of the Corporations Act 2001 (Cth).

Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.

Centre means the childcare centre where your child and/or dependent is enrolled at.

Default Rate means 10% per annum, or the maximum rate allowed by applicable law, whichever is lower.

Developed Content means all content developed by the parties in connection with the Platform and/or Services as set out in clause 8.1(c).

Family User means an end-user who is granted a User Licence to use the Service and/or Platform for the purpose of communicating and observing with the Centre and use other functionality of the Software pursuant to the terms of these End User TCs.

Implied Terms means those terms as specified in clause 11.3.

Intellectual Property Rights means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.

Licence Term means the term of the User Licence as described at clause 5.3.

Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.

National Law means the Education and Care Services National Law Act 2010 (Vic), Children (Education and Care Services National Law Application) Act 2010 (NSW), Education and Care Services National Law Act 2011 (ACT), Education and Care Services (National Uniform Legislation) Act 2011 (NT), Education and Early Childhood Services (Registration and Standards) Act 2011 (SA), Education and Care Services National Law (Application) Act 2011 (Tas), Education and Care Services National Law (Queensland) Act 2011 (Qld), Education and Care Services National Law (WA) Act 2012 and includes the Regulations.

OWNA Content means all documents, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by OWNA to You in relation to the performance of the Services.

Platform(s) means any and all of OWNA’s website, social media accounts, applications, the Software and other technological platform(s) as provided from time to time.

Platform Update means an update to the Platform (including the Software and/or Services) as described in clause 7.4.

Privacy Policy means the privacy policy located on link.

Provider Agreement means the master agreement governing the provision of the Services by OWNA and the grant of the master licence of the Software to the relevant Centre operator and/or owner.

Provider User means the party referred to as the ‘Provider’ (including their employees, contractors, agents, assigns and/or authorised representatives) in the Provider Agreement who is otherwise granted a User Licence under that instrument.

Regulations means the Education and Care Services National Regulations 2011 (NSW).

Security Policy means the security policy located on link.

Services means the services provided by OWNA as detailed on the Platform, including the provision of the Software.

Software means the software provided by OWNA under these End User TCs, including (without limitation) the ‘OWNA Childcare Management’ software.

User Licence as the meaning given to that term in clause 5.1.

You or User means an end-user of the Services, either (as applicable):

1.   where the Software is purchased via the Platform, the person who has purchased the Software and/or Services;
2.   a Family User; and/or
3.   a Provider User.

Your Data means any content and/or data that You broadcast, publish, upload, transmit, post or distribute on the Platform.