1. Introduction
1.1 These MidwithMe Mums-to-be Terms and Conditions, together with our Privacy Policy, comprise the terms of a legal agreement between the person listed in the Access Portal (Mums-to-be, you or your) and Hardy Piesse Pty Ltd trading as MidwithMe (ACN 675 973 547) (MidwithMe, our, us or we) (collectively, the agreement).
1.2 By accessing and using the MidwithMe Platform and the Services, you warrant that you have read this agreement and agree to be bound by this agreement.
2. MidwithMe Platform
2.1 The MidwithMe Platform is a social networking and matchmaking platform that:
a. connects expectant mothers with student midwives who are required to undertake a Continuity of Care Experience program as part of their midwifery course or degree;
b. provides expectant mothers with access to, and use of, personalised and interactable pregnancy checklists and appointment reminders;
c. provides expectant mothers with access to educational resources relating to pregnancy, childbirth, midwifery, early parenting and other information and content that may be of interest to expectant mothers and parents; and
d. provides expectant mothers with access to discounts on pregnancy, birth, baby and parenthood products and services, and discounts on midwifery related products and services for student midwives via third party providers, (collectively, the Services).
2.2 We are a mere portal or conduit for connecting expectant mothers with student midwives. We are not Students, Mums-to-be, medical practitioners, midwives or midwifery training or educational institution. Our role in providing you with access and use of the MidwithMe Platform should be construed strictly in this context only.
2.3 When you create an Account on the MidwithMe Platform, you are granted a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to access and use the MidwithMe Platform and Services for the Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
3. Changes
3.1 We reserve the right to change any provision of this agreement in any way and we may, in our absolute discretion and with or without notice to you:
a. remove any Students from the MidwithMe Platform; and/or
b. add, change or remove any functions or features of the MidwithMe Platform, the Services, fees charged by us under this agreement, or any Third Party Products and Services offered on, or via, the MidwithMe Platform.
3.2 If we provide you with notice of changes to this agreement, we shall do so by posting details of these changes on the MidwithMe Platform or emailing you using the email address listed in the Access Portal.
4. Term
This agreement commences on the date you create an Account with us on, or via, the MidwithMe Platform (Commencement Date) and continues, unless terminated in accordance with clause 13 (Term).
5. Account
5.1 If you wish to access and use the MidwithMe Platform and the Services, you must create an account with us (Account) via the MidwithMe Platform.
5.2 Your Account will be operated by a username and password (Password) which you may change at your convenience using the Access Portal. If you have forgotten your Password, you can use the ‘Reset Password’ function to reset your Password.
5.3 In order to open an Account or otherwise access and use the MidwithMe Platform and the Services, you must:
a. be legally able to enter in to a binding and enforceable contract and
b. provide only accurate, complete registration information and Personal Information (including your full name, email address, preferred name, profile photo and birth due date) and you will update that information if it changes. All Personal Information as well as the information you provide to register, is subject to our Privacy Policy.
5.4 You will create only one account on the MidwithMe Platform and you are solely responsible for the activity conducted on or through your Account. You undertake that you will:
a. not disclose your Password to any third party and take reasonable measures to prevent the disclosure of your Password to any third party. Please notify us immediately if you become aware that your Account or Password is being used without authorisation; and
b. not impersonate another account holder or provide false identity information to gain access to or use the MidwithMe Platform and the Services.
5.5 We have the right to suspend or terminate your Account or Password or your access to or use of all or any part of the MidwithMe Platform and the Services, at any time, if, in our opinion, you misuse the MidwithMe Platform and/or Services or you fail to comply with any of the provisions of this agreement.
6. Mums-to-be obligations
6.1 To access and use the MidwithMe Platform, you must:
a. be pregnant, attempting to become pregnant or conceive or have recently given birth to a child (no more than 24 months earlier) and you must use the MidwithMe Platform in good faith to connect and work with Students who are required to complete a CoCE program;
b. open an Account with us via the MidwithMe Platform;
c. create a Mums-to-be Profile, which: (i) must include your full name, email address, preferred name, profile photo and birth due date; (ii) may include planned place of birth (if a hospital, the name and location of hospital or if at home, your suburb and postcode), your interests and any other biographical information you choose to share or publish on your Mums-to-be Profile. You acknowledge that your Mums-to-be Profile will be shared with, and accessed by, Students through the MidwithMe Platform;
d. ensure that all information provided to us or otherwise published on, or via, the MidwithMe Platform is true, accurate and not misleading. We may, at any time, require you to provide information to us in order to verify your identity and/or the accuracy of your Mums-to-be Profile;
e. obtain and maintain all equipment, hardware and software required by you to access and use the MidwithMe Platform;
f. comply with all reasonable directions, policies and guidelines (including the Acceptable Use Policy) as advised by us from time to time; and
g. carry out all of your responsibilities set out in this agreement in a timely, and efficient manner.
6.2 You must not: (nor attempt to do) any of the following:
a. introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the MidwithMe Platform;
b. violate any MidwithMe IP or any third party Intellectual Property Rights;
c. copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the MidwithMe Platform, or any other third party software that you may access or use through the MidwithMe Platform, in any way;
d. access all or any part of the MidwithMe Platform in order to build a product, service or code which competes with the MidwithMe Platform;
e. data mine the MidwithMe Platform or modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the MidwithMe Platform in any way, or otherwise learn the source code or algorithms underlying the MidwithMe Platform;
f. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or the MidwithMe Platform available to any third party;
g. attempt to obtain, or assist third parties in obtaining, access to the Services and/or the MidwithMe Platform;
h. share or disclose the Personal Information of a Student provided to you through MidwithMe Platform to a third party without the Student’s express written consent, and you must not use the Student’s Personal Information for any purpose (other than for the purposes stipulated in this agreement); and
i. use the MidwithMe Platform and/or Services to engage in any activity or conduct that is in breach of any Relevant Laws; or
j. lodge a complaint or report through the MidwithMe Platform about a Student or Student Data that is maliciously or intentionally false or misleading.
7. Acceptable Use Policy
7.1 By downloading, accessing and using the MidwithMe Platform and each time you publish, upload, submit, post or share Mums-to-be Data on, or via, the MidwithMe Platform, you agree to comply with the rules for the acceptable use of the MidwithMe Platform as specified herein (Acceptable Use Policy).
7.2 You must not upload, transmit or publish any Mums-to-be Data on, or via, the MidwithMe Platform (including via the chat function contained within the MidwithMe Platform) that:
a. would cause you or us (or anyone else) to breach any Relevant Laws;
b. in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
c. is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, sexist, blasphemous, in breach of confidence or privacy or false and misleading or otherwise objectionable;
d. would bring us or the MidwithMe Platform, into disrepute or adversely affect the reputation and goodwill of the MidwithMe Platform or us;
e. would infringe the Intellectual Property Rights or other rights of any person.
f. that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
g. promotes any illegal activity or advocate, promote or assist any unlawful act; and
h. contains any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
7.3 By accessing or using MidwithMe Platform and/or the Services, you acknowledge that it is your responsibility to:
a. ensure that all communications with Students are polite, respectful and courteous and in the best interests of the intended recipient;
b. ensure that any Mums-to-be Data posted or transmitted through the MidwithMe Platform by you is accurate, reliable, up-to-date, and complete;
c. respect the privacy rights of Students and other You must not use the MidwithMe Platform to publish or post the name of persons without the actual or implied consent (unless you are publishing or posting a person’s name for business purposes, such as disclosing that a particular person is a provider of goods and/or services); and
d. ensure that you have adequate legal rights to publish, post, transmit, reproduce or otherwise use the Mums-to-be Data transmitted through the MidwithMe Platform.
7.4 We are not liable nor are we responsible for monitoring or censoring any Mums-to-be Data uploaded, transmit or published by you, or any Student Data published, transmitted or uploaded by Students on, or via, the MidwithMe Platform (including via the chat function contained within the MidwithMe Platform). However, we may (in our absolute discretion and without notice to you):
a. remove, modify, refuse to publish or alter or delete any content, material or information displayed on the MidwithMe Platform without notice to you, if we consider that such content, material or information does not comply with this agreement (including the Acceptable Use Policy and any of our policies or guidelines published by us from time to time); and/or
b. remove or delete any Mums-to-be, Mums-to-be Data, Mums-to-be Profile, Student, Student Profile or Student Data from the MidwithMe Platform.
7.5 We reserve the right to limit your use of the MidwithMe Platform, your right to access and use the Services and/or any Third Party Products and Services made available to you on, or via, the MidwithMe Platform, including the right to restrict, suspend or terminate your Account if we believe you are in breach of the Acceptable Use Policy, this agreement or you are misusing the MidwithMe Platform.
8. Our obligations
8.1 We shall use reasonable endeavours to provide you with access and use of the MidwithMe Platform as described on the Website.
8.2 In the event that we fail to provide you with access and use of the MidwithMe Platform in accordance with clause 1, we will use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 8.1.
9. Intellectual Property Rights
9.1 You acknowledge that, notwithstanding anything else, we (and our licensors) own all Intellectual Property Rights in the MidwithMe Platform and the Services (and anything arising or generated therefrom) (collectively, the MidwithMe IP). Accessing and using the MidwithMe Platform does not give you (or anyone else) ownership of, or any right, title or interest in any of the foregoing (or MidwithMe IP contained therein), or any information, content or technology that may be provided to, or accessed by, you in connection with their use, all of which is, and will remain, owned by us or our licensors.
9.2 All Intellectual Property Rights discovered, developed or which otherwise come into existence as a result of, or in connection with, the MidwithMe Platform and the Services will automatically vest in, and will be assigned to, us.
9.3 You will retain ownership of your Mums-to-be Data (excluding MidwithMe IP and Student Data) and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your Mums-to-be Data (including any Mums-to-be Data that you publish or post using the chat function contained within the MidwithMe Platform).
9.4 By creating an Account on, or via, the MidwithMe Platform, you grant us a worldwide, non-recoverable, non-exclusive, royalty-free and perpetual licence to use, disclose, share, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, the Mums-to-be Data (and all Intellectual Property Rights contained therein) for any purpose, including for the purpose of:
a. enabling MidwithMe to provide the MidwithMe Platform and the Services to you and to otherwise perform our obligations and exercise our rights under this agreement;
b. informing you of other products or services that MidwithMe may offer from time to time or in relation to Third Party Products and Services;
c. complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request;
d. using usage patterns, trends, and other statistical or behavioural data derived from use of the MidwithMe Platform and/or the Services for the purposes of providing, operating, maintaining, or improving the Services, the MidwithMe Platform, or our other products and services; and
e. sharing Mums-to-be Data with an Affiliate, analytics service provider or other third party (with whom MidwithMe may contract or be affiliated with from time to time) for the purposes of performing or improving the MidwithMe Platform and/or the Services.
9.5 MidwithMe shall use reasonable endeavours to follow our archiving procedures for Mums-to-be Data in accordance with its standard back-up policy from time to time. In the event of any Loss of Mums-to-be Data, your sole and exclusive remedy shall be for MidwithMe to use reasonable endeavours to restore the Mums-to-be Data, that is lost or damaged, from the latest back-up of Mums-to-be Data, maintained by MidwithMe.
10. Disclaimer of warranties
10.1 You acknowledge that MidwithMe and the Students you connect with on, or via, the MidwithMe Platform are not medical practitioners or health care providers, and we and the Students are not providing medical or healthcare advice or health services of any kind to you. While:
a. the Students you connect with on, or via, the MidwithMe Platform may provide you with midwifery, pregnancy, birth and early parenthood support services; and
b. the Content (including Third Party Products and Services made available to you by third party providers) through the MidwithMe Platform are designed to provide you with general information about pregnancy, childbirth, and midwifery and early parenthood, it is not a substitute for professional medical advice, health services or healthcare treatments. Your use of, and reliance on, the Services, any Third Party Products and Services and any midwifery, pregnancy, birth and early parenthood support services provided by a Student is at your own risk.
10.2 To the maximum extent permitted by Relevant Laws, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise) given in connection with the MidwithMe Platform, the Services or any other Third Party Products and Services made available to you on, or via, the MidwithMe Platform.
10.3 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.
10.4 You acknowledge and agree that, to the maximum extent permitted by Relevant Laws, we make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency or security of the MidwithMe Platform, the Services or any Third Party Products and Services made available to you on, or via, the MidwithMe Platform.
10.5 You acknowledge that the MidwithMe Platform, the Services or any Third Party Products and Services made available to you on, or via, the MidwithMe Platform are provided on an ‘as is’ basis, and that we will not be liable to you or anyone else if the MidwithMe Platform, the Services or any Third Party Products and Services are unavailable for any reason, including directly or indirectly as a result of:
a. telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
b. negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
c. maintenance (scheduled or unscheduled) carried out by us or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the MidwithMe Platform;
d. products or services provided by third parties ceasing or becoming unavailable; or
e. a Force Majeure Event.
10.6 MidwithMe shall use reasonable endeavours to make the MidwithMe Platform and the Services available 24 hours a day, 7 days a week, except for:
a. planned maintenance carried out at times advised in advance by MidwithMe; and
b. unscheduled maintenance which may need to be performed from time to time. MidwithMe will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of Business Hours.
10.7 You warrant, acknowledge and agree that:
a. your use of, and reliance on, the MidwithMe Platform and the Services has not been made on the basis of any representations as to current or future features or functionality of the MidwithMe Platform;
b. you have the full power and authority to enter into this agreement and perform your obligations contemplated by this agreement, and in doing so, will not breach any third party rights; and
c. we do not give any warranty or guarantee in relation to the reliability, legitimacy, repute, or credibility of any Student nor the ability or willingness of a Student to provide midwifery, pregnancy, birth and early parenthood support services to you.
11. Limitation of Liability
11.1 To the maximum extent permitted by Relevant Laws, we will not be liable to you or any third party for:
a. any Claims or Losses (including Consequential Loss); or
b. loss of, or damage to, any property or any personal injury, illness or death to you, your child (unborn or born), Students or any third person, which arises out of, or relates to, the provision or use of the MidwithMe Platform, the Services (or any Third Party Products and Services made available to you on, or via, the MidwithMe Platform) or under this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
11.2 Under no circumstances will our aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed $10.
11.3 You agree to defend, indemnify and hold us, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out of:
a. your access to, and use of, or reliance on the MidwithMe Platform or the Services (including the Content and Third Party Products and Services);
b. any breach of our or any third party’s Intellectual Property Rights or other rights caused by you; or
c. any breach by you of this agreement.
12. Privacy
All Personal Information you provide to us to open an Account, to create a Mums-to-be Profile and to otherwise access and use the MidwithMe Platform and Services, is subject to our Privacy Policy, which is incorporated into this agreement. Except as otherwise stated in this agreement and in our Privacy Policy, we shall not share, sell or disclose your Personal Information to any third party. You warrant that, in relation to any Personal Information comprising your Mums-to-be Profile, Mums-to-be Data or any other information disclosed by you to us on, or via, the MidwithMe Platform:
a. it has been collected in accordance with Privacy Laws;
b. you have the authority to upload, post, publish or otherwise transmit such information on, or via, the MidwithMe Platform; and
c. you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for us to use, disclose, store, transfer, process or handle it.
13. Termination
13.1 During the Term you may terminate this agreement at any time by selecting the ‘Delete Account’ function in your ‘Account Settings’ page.
13.2 MidwithMe may terminate the agreement any time (without liability to you) by giving you at least 14 days written notice or posting the termination of the agreement on the MidwithMe Platform.
13.3 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):
a. your Mums-to-be Profile and/or the Access Portal; and/or
b. the MidwithMe Platform and/or Services;
c. any social media pages linked to our business or the MidwithMe Platform; or
d. any other products and services offered on, or via, the MidwithMe Platform (including Third Party Products and Services).
13.4 Cause for such suspension or termination under clause 3 may include, but are not limited to:
a. any serious or repeated breaches or violations of this agreement, the Acceptable Use Policy or any of our other policies and guidelines and any other agreements entered into between the parties;
b. you are the subject of serious or repeated complaints from Students about your conduct or behaviour when accessing or using the Services;
c. serious or repeated breaches or violations of our or another person’s Intellectual Property Rights or privacy rights;
d. your activities, conduct or transactions on, or, via, the MidwithMe Platform, brings, or has the capacity to bring, us into disrepute; or
e. requests by law enforcement or other government agencies.
13.5 You agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you or any third party for any such suspension or termination.
13.6 On termination or expiration of this agreement:
a. we will (without liability to you or any third party) delete, de-identify or otherwise dispose of your Account and all of your Mums-to-be Data in our possession in accordance with any limitation periods and records retention obligations that are imposed by Relevant Laws (except any Mums-to-be Data you have published or submitted in a private chat with Students will not be deleted but will be retained by us in de-identified and anonymised form). Before terminating the agreement, you may download a backup of your Mums-to-be Data onto your device (except you will be unable to download a backup of your private chats with Students or your personalised checklist onto your device);
b. all licences to use the Services and rights of access to the MidwithMe Platform granted under this agreement will immediately terminate; and
c. we will delete or de-activate your Account.
14. Third party websites
14.1 You acknowledge that the MidwithMe Platform may contain third party content or content that may link to other websites, services, products or resources on the Internet. These websites are not under our control and are not maintained by us. We are not responsible for the content of those websites, resources, products or services, and accept no responsibility for them or for any Loss or damage that may arise from your use of them (notwithstanding anything else contained herein). We only provide links to third party websites for your information and convenience.
14.2 Links, references or other connections to these websites, resources, products or services do not imply any endorsement of them or any association with their owners, operators or advertising material (as the context permits).
14.3 Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-site pages and other websites or third-party suppliers that you visit or transact with.
15. Dispute Resolution
You must, before resorting to court proceedings, refer any dispute with us (excluding any dispute between you and Student) under or relating to this agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.
16. Complaint process
16.1 If you wish to make a complaint or lodge a report that a Student or Student Data published or posted by a Student has breached the Acceptable Use Policy or other terms of this agreement, you may lodge a complaint or report using the ‘Report this user’ function within the MidwithMe Platform. If your complaint is not about another user, then you should lodge a complaint or report using the ‘Help Centre’ function.
16.2 We will use reasonable endeavours to investigate any complaint or report lodged by you within a reasonable period of time and we may, at our absolute discretion, take corrective action that we deem appropriate in the circumstances (such as modifying, deleting, blocking or removing the Student Data or the Student from the MidwithMe Platform).
16.3 We do not guarantee that any Student will be removed from the MidwithMe Platform or that any Student Data will be modified, blocked or removed from the MidwithMe Platform following your report or complaint. We will not take corrective action, if we do not believe that the Student Data or the Student complained about has breached the Acceptable Use Policy or any other terms of this agreement.
16.4 Where we have determined, at our absolute discretion, that the Student Data or the Student has breached the Acceptable Use Policy or other terms of this agreement, we do not guarantee that such Student Data or the Student will be deleted or removed within a specific timeframe.
16.5 We may not notify you of the outcome of our investigation or the corrective action (if any) we have taken in response to your complaint, unless you have complained about a breach of your Intellectual Property Rights or privacy rights.
17. Force Majeure Event
We will have no liability to you or anyone else under this agreement if we are prevented from or delayed in performing our obligations under this agreement or otherwise, or are otherwise prevented from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control. Such events include strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, acts of God, natural disasters, epidemics, pandemics, mandatory government shutdowns/lockdowns sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemics, epidemics, mandatory government lock-downs or default of hosting or data centre providers or other suppliers or sub-contractors, shortage of suppliers, equipment and materials, (Force Majeure Event).
18. Updates and variations
18.1 Without notice to you, MidwithMe may, at our absolute discretion, from time to time:
a. change, add or delete the functions, features, performance, or other characteristics of the MidwithMe Platform; or
b. apply or install updates to, or new versions of, the MidwithMe Platform.
18.2 You acknowledge that the Content and Student Data on the MidwithMe Platform are subject to change at any time and may be out of date at any given time. MidwithMe are under no obligation to:
a. update, correct or fix any Content, Student Data or errors in the MidwithMe Platform; and/or
b. notify you of any changes to the Content, Student Data or the MidwithMe Platform, unless required by a Relevant Law to do so.
18.3 Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the MidwithMe Platform. Any changes are effective immediately upon posting to the MidwithMe Platform. Your continued use of MidwithMe Platform thereafter constitutes your acceptance of all such changes to the agreement.
18.4 Please read this agreement before using the MidwithMe Platform as the agreement may have changed since the last time you accessed and used the MidwithMe Platform. If you do not agree to any change, then you must immediately stop using the MidwithMe Platform and the Services.
19. Support services
19.1 MidwithMe may, at our absolute discretion, provide you with customer support services during Business Hours in accordance with the MidwithMe standard support services and maintenance policy (as amended from time to time).
19.2 If you require customer support services, you may contact us using the ‘Help Centre’ function or if you are having difficulties accessing and using the MidwithMe Platform and the Services, you may contact us by email at connect@midwithme.com.au.
20. Notice
20.1 By accessing and using the MidwithMe Platform, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the MidwithMe Platform.
20.2 You acknowledge that all contracts, notices, information and other communication (notices) we may provide electronically comply with any legal requirements that such documents be in writing.
20.3 Notice will be deemed received and properly served immediately when posted on the MidwithMe Platform or 24 hours after an email is sent to you. As proof of service, it is sufficient that the email was sent to the email address specified by you in the Access Portal.
21. General
21.1 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
21.2 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21.3 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21.4 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangements, understandings or agreements between them relating to the subject matter they cover.
21.5 You agree to not, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement (without first seeking our written consent), except that we may assign, sell or transfer our rights or obligations under this agreement to an Affiliates or bona fide third party purchaser of our business.
21.6 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
21.7 The laws of the state of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the courts of Victoria, Australia.
22. Definitions
22.1 In this agreement, the following words shall have the following meanings:
a. Acceptable Use Policy has the meaning in the MidwithMe Student Terms and Conditions.
b. Access Portal means the self-service portal on the MidwithMe Platform used by you to access and use, the MidwithMe Platform.
c. Account has the meaning in clause 5.1.
d. Acceptable Use Policy has the meaning in clause 7.
e. Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
f. Business Days means each day excluding Saturdays, Sundays and public holidays in Victoria, Australia.
g. Business Hours means 9:00am to 3:30pm on Business Days.
h. Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
i. Commencement Date has the meaning in clause 4.
j. Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Commencement Date as a likely result of breach of the agreement:
i. direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
ii. loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data;
iii. costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
iv. loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
k. Content means all:
i. the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the MidwithMe App; and
ii. educational resources relating to pregnancy, childbirth, and midwifery, early parenting and other information and content that may be of interest to expectant mothers and parents.
l. Continuity of Care Experience, Follow-Through Experiences or CoCE means the voluntary partnership between a woman and a midwifery student whereby the midwifery student experiences the pregnancy, birth and postnatal journey alongside the volunteered woman.
m. Force Majeure Event has the meaning in clause 17.
n. Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information, databases or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in the future in any part of the world.
o. Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss.
p. MidwithMe, our, us or we has the meaning in clause 1, and where the context permits, includes our Personnel and Affiliates.
q. MidwithMe IP has the meaning given to it by clause 1.
r. MidwithMe Platform means the online platform owned and operated by MidwithMe and used by us to provide the Services, including system and server software and database software, computer hardware on which that database, system and server software is installed, and Intellectual Property Rights contained therein, provided or otherwise made available by us, on or via, the Website.
s. MidwithMe Student Terms and Conditions means the terms and conditions between MidwithMe and Students.
t. Mums-to-be, you or your has the meaning in clause 1.1, being an expectant mother who uses the MidwithMe Platform to be matched with, and connect to, a Student who can provide midwifery, pregnancy, birth and early parenting support to the Mums-to-be.
u. Mums-to-be Data means all data, content, material and information (including Personal Information):
i. uploaded to or stored on the MidwithMe Platform by the Mums-to-be;
ii. transmitted by the MidwithMe Platform at the instigation of the Mums-to-be;
iii. supplied by the Mums-to-be, for uploading to, transmission by, or storage on, the MidwithMe Platform; or
iv. generated by the MidwithMe Platform as a result of the Mums-to-be using the Services.
v. Mums-to-be Profile means the profile of a Mums-to-be that is displayed on the MidwithMe Platform and which contains the Mums-to-be’s profile information and Personal Information as further described in clause 1(c).
w. Service has the meaning in clause 1.
x. Password has the meaning in clause 2.
y. Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.
z. Personnel means any director, officer, employee, contractor or agents, of a party (in our case, includes any person acting for or on our behalf).
aa. Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles and any other legislation, codes and policies relating to the handling of Personal Information.
bb. Privacy Policy means our privacy policy available at midwithme.com.au/account/about/privacy-policy or any other internet site notified by us from time to time, which is incorporated into this agreement.
cc. Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements anywhere in the world.
dd. Student means a midwifery student who uses the MidwithMe Platform to be matched with, and connect to, Mums-to-be for the purpose of undertaking the CoCE component of their midwifery course or degree.
ee. Student Data means all data, content, material and information (including Personal Information):
i. uploaded to or stored on the MidwithMe Platform by the Student;
ii. transmitted by the MidwithMe Platform at the instigation of the Student;
iii. supplied by the Student, for uploading to, transmission by, or storage on, the MidwithMe Platform; or
iv. generated by the MidwithMe Platform as a result of the use of the Services by the Student.
ff. Student Profile means the profile of a Student that is displayed on the MidwithMe Platform and which contains the Student profile information.
gg. Term has the meaning in clause 4.
hh. Third Party Products and Services means any software, products, services, content, materials or information (including all Intellectual Property Rights contained therein) that:
i. are provided by third party providers (such as pregnancy, birth, baby and parenthood products and services, midwifery related products and services);
ii. interoperate with the MidwithMe Platform or the Services; or
iii. may be identified as third party products or services.
ii. Website means our website located at midwithme.com.au and social media linked pages or any other internet site notified by us from time to time.