Website Terms & Conditions of Use

This Terms of Service Agreement was last updated on April 29, 2021

 

1.     About the Website

1.1. Welcome to memwah.com.au (the 'Website'). The Website allows you to access and use the Memwah (the 'Services').

1.2. The Website is operated by Not Another Group PTY LTD, ACN 625 087 701 located at 2803/ 80 Lorimer Street Docklands Victoria 3008. 

1.3. Not Another Group PTY LTD, hereafter referred to as Memwah, reserves the right to review and change any of the Terms by updating this page at its sole discretion. We advise you review the terms and conditions on a regular basis. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records. Access to and use of the Website, or any of its associated Products or Services, is provided by Memwah. Please read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.

2.     Acceptance of the Terms

You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you in the user interface.

3.     About the Service

3.1.  Memwah is making it easy for families and businesses to preserve and share stories no matter where they are in the world. Memwah’s software prompts you to answer a series of questions which is then compiled into a video. You select the questions or can add your own, then send a unique link inviting a family member, friend or colleague to answer. They can record the answers in their own time, on their device. They can record, review, retake or skip to the next question all through the link. After they have finished they submit and you can then easily compile the answers into a life story video via your story gallery. You can share the story with your family, friends or associates at your own discretion.  

3.3.  Some accounts may be governed by a separate Software Licensing Agreement with Memwah, which may amend the terms of use. For the avoidance of doubt these Terms apply unless otherwise agreed or amended by the terms of an applicable Software Licensing Agreement. 

3.4 Memwah offers the following Story’s (‘Plans’)

Free Story – For individuals wanting to try the product before committing to purchase. Each free Story will have a limited length and users will have a limited amount of stories. Users will be required to register to the service and sign up to mailing list to have access. Stories and answers will be stored for a limited time as per the promotion advertised at the time of registration. 

Short Story – Is a paid ‘Plan’ which gives access for individuals or groups to create a ‘short’ story with unlimited users and contributors. Compilation length and video storage timing is limited to the payment plan at time of registration   

Life Story – Is a paid ‘Plan’ which gives access for individuals or groups to create a longer story with unlimited users and contributors. Compilation length and video storage timing is limited to the payment plan at time of registration   

Feature Story - Is a paid plan which gives access for individuals or groups to create a story with unlimited users and contributors. Compilation length and video storage timing is limited to the payment plan at time of registration   

Concierge Story – is a paid service quoted upon an individual basis. This service includes additional services not included in the Web application.  

3.5 Memwah has the following users (“Roles”)

There are three general types of users of the Services. Each user registers with Memwah or who have registered with an authorized third party that provides access to Memwah Services. 

Story Administrator – creates the story, select and add questions, selects plan and makes payment if required by plan, record questions, invite additional storytellers and editors, compiles final video and shares it. 

Storyteller – Someone who is invited to record and answer questions and view the final compilation 

Contributor / Editor – Someone who is invited to record and answer questions and also have access to add questions, edit questions, arrange the order and view all video submissions. 

You acknowledge and agree that the accounts offered, as well as the account features may change from time to time, and may be governed by separate terms which apply specific to the account. Where special account-specific terms apply, you will be informed, and must accept those terms before you are given such an account. For the avoidance of doubt these Terms apply unless otherwise agreed or amended by account-specific terms.

4.     Acceptable use of the Service

4.1.  Memwah and its related features, and website must only be used lawfully. 

4.2.  We do not guarantee that our site or any platform associated will be secure or free from bugs or viruses.

4.3.  You are responsible for configuring your information technology and computer programmes in order to access our site, as applicable. You should use your own virus protection software.

4.4.  You must not misuse our site by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to our site, the Platforms, the server on which our site or the Platforms are stored, or any server, computer or database connected to our site or a Platform. You must not attack our site or the Platforms via a denial-of-service attack or a distributed denial-of service attack.

4.5.  Memwah reserves the right to suspend, cancel, or otherwise deny access to users and accounts who use the service:

4.5.1.     To engage in any act that would disrupt the access, availability, and security of Memwah and its associated services, including but not limited to:

4.5.1.1.          Tampering with, reverse-engineering, or hacking our servers

4.5.1.2.          Modifying, disabling, or compromising performance Memwah services.

4.5.1.3.          Overwhelming, or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources.

4.5.1.4.          Compromising the integrity of our system, including probing, scanning and testing the vulnerability of our system unless expressly permitted by Memwah. 

4.5.2.     For any illegal purpose, or to violate any laws, including and without limitation to data, privacy, and export control laws.

4.5.3.     To stalk, harass or threaten users and any member of the public.

4.5.4.     To misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Memwah or any third party

4.5.5.     To access or search any part of the Service, or any other Service owned other than our publicly supported interface, or otherwise allowed for in an applicable Software Licensing Agreement.

4.5.6.      To post, upload, share, or otherwise circulate content in violation of Memwah’s content policy in clause 6.

4.6.       You agree you will not submit to the Service any content or material that is not in Memwah’s Guidelines. We base our guidelines on Youtubes community guidelines currently found at https://www.youtube.ca/t/community_guidelines . In brief, the guidelines can be summarized as follows:

·       No nudity or sexual content

·       No harmful or dangerous content

·       No content which can endanger the emotional or physical wellbeing of minors

·       No hateful content

·       No violent or graphic content

·       No threats, harassment or cyberbullying

·       No spam, misleading advertising, and scam

If you see content that you think violates our guidelines, then you can contact us at [email protected] 

Memwah’s website and application are directed to people residing in the Australia. We do not represent that content available on or through our site or the Platforms is appropriate or available in other locations. We may limit the availability of our site, the Platforms or any other service or product described on our site to any person or geographic area at any time. If you choose to access our site or a Platform from outside of Australia, you do so at your own risk.

6.1.  As a Memwah Story Administrator, Storyteller or editor / Collaborator user who are managing or are invited to contribute, you may submit "Content" to the Service, including videos, images, audio and text.

6.2.  You further agree that when you submit content you a grant any or all of the story contributors a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display of your content. 

6.3  You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Memwah all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.

6.4  For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to Memwah, you hereby grant Memwah a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Memwah (and its successors') business. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that Memwah may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted.

6.5.  You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Memwah all of the license rights granted herein.

6.6.  Memwah does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Memwah expressly disclaims any and all liability in connection with Content. Memwah does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Memwah will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Memwah reserves the right to remove Content without prior notice.

6.7. You further agree that when you submit content on the site, that all other contributors, story administrators and storytellers will have access to that content and can share it via email or to other third party sites. If you don't want your content shared outside the program, then we highly recommend you notify the Story Administrator so they can delete your content. 

Memwah takes your privacy seriously and information provided through your use of the Website and/or Services are subject to Memwahs Privacy Policy, which is available on the Website. The Privacy Policy also addresses Memwah's processes, policies, and obligations in respect of Memwah security breaches.

 

Memwah collects, stores, and processes your data. The data is used to provide Services to you, as well as to facilitate Memwah's business operations. The Privacy Policy outlined how your data is collected, stored, and processed by Memwah. The Privacy Policy also addresses Memwah's processes, policies, and obligations in respect of data encryption and removal requests.

 

9.1.  In order to access the Services, you must either select a free story or purchase a plan through the Website (the 'story') and pay the applicable fee for the selected plan (the 'Story Fee'). After purchasing a Plan, you will be considered a member (‘Member’).

9.2.  In purchasing the Story, you acknowledge and agree that it is your responsibility to ensure that the Story you elect to purchase is suitable for your use. 

9.3.  Before, during or after you have purchased the Plan, you will then be required to register for an account through the Website before you can access the Services (the ' Account').

9.4.  As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including but not limited to your name, email address, date of birth, photo, telephone number and credit card details.

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

9.6.  Once you have completed the registration process, you will be a registered user of the Website and agree to be bound by the Terms ("Storyteller"). As a Member you will be granted immediate access to the Services from the time you have completed the registration process until the Plan period expires (the 'Plan Period').

9.7.  You may not use the Services and may not accept the Terms if:

9.7.1.     You are not of legal age to form a binding contract with Memwah; or

9.7.2.    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

10.  Payments

10.1.  Subject to the terms of any applicable Software License Agreement, the Plan Fee may be paid by all payment methods available on the Website, and may change from time to time.

10.2.  Payments made in the course of your use of Memwah may be made using third-party applications and services not owned, operated, or otherwise controlled by Memwah. You acknowledge and agree that Memwah will not be liable for any losses or damage arising from the operations of third-party payment applications and services. You further acknowledge and warrant that you have read, understood and agree to be bound by the terms and conditions of the applicable third-party payment applications and services you choose to use as a payment method for Memwah services.

10.3. You acknowledge and agree that where a request for the payment of the Plan Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Plan Fee.

10.4. You agree and acknowledge that Memwah can vary the Plan Fee at any time and that the varied Plan Fee will come into effect following the conclusion of the existing Plan.

11.  Refund Policy

Memwah will only provide you with a refund of the Plan Fee in the event they are unable to continue to provide the Services or if the manager of Memwah makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Plan Fee that remains unused by the Storyteller (the 'Refund').

 

12.  Copyright and Intellectual Property

12.1.   The Website, the Services and all of the related products of Memwah are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Memwah or its contributors.

12.2.   All trademarks, service marks and trade names are owned, registered and/or licensed by Memwah, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Storyteller to:

12.2.1.  use the Website pursuant to the Terms;

12.2.2.  copy and store the Website and the material contained in the Website in your device's cache memory; and

12.2.3.  print pages from the Website for your own personal and non-commercial use.

12.3.   Memwah does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Memwah.

12.4.   Memwah retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:

12.4.1.  business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or

12.4.2.  a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or

12.4.3.  a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.

12.5. You may not, without the prior written permission of Memwah and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.

 

13.  General Disclaimer

13.1. Memwah does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its website or otherwise relating to such materials or on any sites linked to this site.

13.2. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

13.3. Subject to this clause, and to the extent permitted by law:

13.3.1.  all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and

13.3.2.  Memwah will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

13.4.   Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Memwah make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Memwah) referred to on the Website, includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

13.4.1.  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;

13.4.2.  the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);

13.4.3.  costs incurred as a result of you using the Website, the Services or any of the products of Memwah; and

13.4.4.  the Services or operation in respect to links which are provided for your convenience.

14.  Links

14.1. You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.

14.2. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

14.3. Memwah has not reviewed all of the sites linked to its website and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Memwah of the site. Use of any such linked website is at the user's own risk.

14.4. If you wish to make any use of content on our site or the Platforms other than that set out above, please contact [email protected]  

15.1. Memwah's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.

15.2. You expressly understand and agree that Memwah, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

16.1. The Terms will continue to apply until terminated by either you or by Memwah as set out below.

16.2.  If you want to terminate the Terms, you may do so by:

16.2.1.  not renewing the Plan prior to the end of the Plan Period;

16.2.2.  providing Memwah with 14 days days’ notice of your intention to terminate; and

16.2.3.  closing your accounts for all of the services which you use, where Memwah has made this option available to you.

16.3. Any notices pursuant to Clause 16.2 above should be sent, in writing, to Memwah via the 'Contact Us' link on our homepage.

16.4.  Memwah may at any time, terminate the Terms with you if:

16.4.1.  you do not use the service beyond the end of the Plan Period;

16.4.2.  you have breached any provision of the Terms or intend to breach any provision;

16.4.3.  Memwah is required to do so by law;

16.4.4.  the provision of the Services to you by Memwah is, in the opinion of Memwah, no longer commercially viable.

16.5.              Subject to local applicable laws, Memwah reserves the right to discontinue or cancel your Account at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Memwah's name or reputation or violates the rights of those of another party.

You agree to indemnify Memwah, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:

17.1. all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;

17.2. any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or

17.3. any breach of the Terms.

 

18.1. Compulsory:

If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

18.2. Notice:

A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

18.3.   Resolution:

On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:

18.4.   Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;

18.5.   If for any reason whatsoever, 60 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Disputes Centre or his or her nominee;

18.6.   The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

18.7.   The mediation will be held in Melbourne, Australia.

18.8.   Confidentiality:

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

18.9. Termination of Mediation:

If 120 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.

 

The Services offered by Memwah is located in Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria.

 

The Terms are governed by the laws of Victoria. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

 

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

 

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.