Terms & Conditions - What Ability Foundation

What Ability Foundation

Website Terms and Conditions of Use

Welcome to the website of What Ability Foundation Limited (ACN 650 268 385) (“we”, “us” or “the Foundation”), a not-for-profit that partners with companies to unlock experiences and offer greater community access for people living with a disability and the families that care for them.

Our website is located at https://whatabilityfoundation.org.au and includes all of the files located in that domain (“the Site”).

1. Agreement to these website items and conditions of use

1.1 By accessing this Site, using the donation and application services on the Site (“the Services”) and/or utilising the experiences provided by the Foundation (“the Experiences”) including but not limited to:

using the Site’s features and functionalities;
participating in marketing (including the publication and dissemination of product information within the Site);
accessing the Site and its user interfaces; and
communicating with other third parties (e.g. advertising and media agencies on the Site)

you agree to be bound by these terms and conditions of use (“Terms”).

1.2 These Terms constitute a binding legal agreement between you (and your agents and nominees) and the Foundation (and its agents and nominees) and sets forth your rights and obligations with respect to the use of the Site. The Terms govern your use of this Site and your continued use of the Site constitutes your acceptance and acknowledgment of these Terms.

1.3 Please read these Terms carefully before accessing or using the Site. If you do not agree to these Terms, please do not access the Site.

1.4 As part of these Terms, your use of this Site is also subject to our Privacy Policy (located at https://whatabilityfoundation.org.au/privacy-policy), which are incorporated by reference into these Terms.

Legal capacity to transact

1.5 If you are under 18 years of age, you cannot use the Services through this Site. By using this Site you represent and warrant to The Foundation that you are over the age of 18 years. Should The Foundation suffer any damage or other losses as a result of use of the Services by a minor, we reserve the right to seek compensation for such losses from his/her parents or guardians.

1.6 We may, in our sole discretion, refuse to offer the Services to any person or entity and we may change our eligibility criteria at any time.

2. Restrictions on use

Prohibited Conduct & Other Rules

2.1 By using the Site, you acknowledge and agree that you must not:

use any device, routine or software that interferes, or attempt to interfere, with the proper working of this Site;
engage in any action that requires, or may require, an unreasonable or excessively large load on our infrastructure;
use this Site to decipher passwords or security encryption codes, transmit any worms, viruses or Trojan horses, transfer or store illegal, threatening or obscene material or otherwise violate the security of any computer network;
use this Site to violate any applicable local, state, national or international law, to engage in any misleading or deceptive online marketing practices or for any fraudulent or malicious purposes;
use any spider, robot or search/retrieval application or any screen scraping, data mining or similar data gathering device, process, program or means to access, retrieve or index any portion of this Site;
use this Site by any automated means;
use this Site to transmit junk mail, spam or chain letters or pyramid schemes or engage in other flooding techniques or mass distribution of unsolicited email;
access, retrieve or index any portion of this Site for use in constructing or populating any database that is searchable online or for the purpose of soliciting or sharing reviews;
interfere with the display of any advertisements appearing on or in connection with this Site;
reverse engineer, decompile, disassemble, adapt, modify, translate, frame or reformat any of the material contained on this Site;
reproduce, duplicate, copy or store any of the material appearing on this Site other than for your own personal and non-commercial use;
falsely imply that any other website is associated with this Site;
do anything that leads, or may lead, to a decrease in the value of The Foundation’s intellectual property rights in this Site;
use or exploit any of the material appearing on this Site for, or in connection with, any business or enterprise (whether for profit or otherwise), including any business or enterprise that is in competition with this Site;
release to the public any news release, advertising material, promotional material or any other form of publicity or information relating to The Foundation without The Foundation’s prior written consent; or
use this Site to transmit any information or material that is, or may reasonably be considered to be:
abusive, threatening, harassing, harmful, obscene, indecent, lewd, inflammatory, violent, vulgar, profane, racially, ethnically or otherwise objectionable or offensive in any way;
libellous, defamatory, pornographic, sexually explicit, unlawful or plagiarised;
infringing upon or violating any copyright, trademark, patent or other intellectual property or proprietary right;
in breach of any duty of confidentiality by which you are bound, whether by way of a fiduciary or contractual relationship;
in breach of any person’s privacy or publicity rights;
a misrepresentation of facts, including the impersonation of any person or entity or a misrepresentation of an affiliation with any person or entity (including any sponsorship or endorsement);
in violation of any applicable law, statute, ordinance or regulation, or encouraging of others to do so;
containing any political campaigning material, advertisements or solicitations; or
likely to bring The Foundation or any of its staff into disrepute.

Violations of these Website Terms and Conditions of Use

2.2 Without limiting any other remedies available to The Foundation at law or in equity, The Foundation reserves the right to, without notice:

temporarily or indefinitely suspend, or terminate, your access to this Site or refuse to provide products or services to you if:
you breach any provision of these Terms;
the Foundation is unable to verify or authenticate any information that you provide to us; or
the Foundation believes that your actions may cause damage and/or legal liability to The Foundation, any of its customers or suppliers or any other person; and
remove or block access to any information and/or materials (in whole or in part) that The Foundation, at its sole and absolute discretion, regards in any way to be objectionable or in violation of any applicable law, any person’s intellectual property rights or these Terms.

Indemnity

2.3 You indemnify and hold harmless the Foundation and its officers, employees, agents, consultants, licensors, partners and affiliates from and against any losses, liabilities, costs, expenses or damages (including actual, special, indirect and consequential losses or damages of every kind and nature, including all legal fees on a solicitor-client basis) suffered or incurred by any of them due to, arising out of, or in any way related to (directly or indirectly):

any material or information that you submit, post, transmit or otherwise make available through this Site;
your use of, or connection to, this Site; or
your negligence or misconduct, breach of these Terms or violation of any law or the rights of any person.

3. Memberships & Applications

3.1 In order to be eligible to utilise an Experience, you must be a Foundation member (“Member”). A Member may either be

(a) a person with a disability; or

(b) a person applying on behalf of a person with a disability.

3.2 If you wish to be a Member, you must make an application on the Site. The Foundation may request any information or any document it deems necessary, in its absolute discretion, to determine whether you meet the eligibility criteria to become a Member, including, but not limited to:

(a) information about household income;

(b) information about your disability status and/or the disability status of the person on whose behalf you are making the application;

(c) any health information about you or the person on whose behalf you are making the application the Foundation deems necessary;

(d) medical certificates; and

(e) reference documents, including but not limited to a reference from a GP, teacher, therapist.

3.3 The Foundation will comply with all confidentiality requirements in accordance with the Privacy Policy with respect to all information and documents provided as part of any application. Where the Foundation, in accordance with the Privacy Policy, is required to disclose any information and/or documents provided as part of any application, the Foundation shall inform you of such disclosure as soon as is reasonably practicable.

3.4 By making an application to become a Member on this Site, you acknowledge and agree that the assessment of your eligibility is made by the Foundation at its absolute discretion. Any decision in respect of your eligibility to become a Member made by the Foundation is final, and you may not bring any claim against the Foundation where you disagree with such a decision.

3.5 The eligibility criteria the Foundation uses to assess eligibility of Members may be amended from time to time, in the Foundation’s absolute discretion, and the Foundation shall be under no obligation whatsoever to provide you with its reasons for any decisions made in accordance with the eligibility criteria.

4. Donations

4.1 Payment for all donations made through the Site may be made by credit or debit card processed online using our secure third party Payment Gateway, IntegraPay / Payrix (“Payment Gateway”). We are currently accepting Visa, Mastercard and American Express as payment methods.

Payment Gateway

4.2 The Foundation uses the Payment Gateway for its secure online payment transactions. Payments made through the Payment Gateway are subject to the Payment Gateway’s own terms and conditions and privacy policy in addition to these Terms. For more information about the Payment Gateway, see the IntegraPay website (https://integrapay.com.au), which is being rebranded Payrix (https://www.payrix.com).

4.3 Unless you expressly consent otherwise, we do not see or have access to any Personal Information that you may provide to the Payment Gateway, other than information that is required in order to process your payment (e.g. your name, email address and billing/postal address).

4.4 The Foundation does not accept any responsibility for any errors made by the Payment Gateway. By providing your credit or debit card details, you confirm that you are authorised to use that payment method, and you authorise the Foundation, through the Payment Gateway, to charge your payment method for the total amount of your order.

Receipt

4.5 You will be provided with a receipt for any donation made. All donations greater than $2 are tax deductible.

Refund Policy

4.6 The Foundation may, at its absolute discretion, decide to provide you with a refund for all or part of any donation made, including, but not limited to, circumstances where:

(a) you have donated the wrong amount;

(b) you have donated to the wrong charity;

(d) the Foundation deems that the donation may prevent it from achieving its mission; and/or

(e) the Foundation is concerned that the donor has attained the wealth from which the donation is made in a way that does not align with its core values.

4.7 Where you require a refund of your donation, please email [email protected] outlining the details of your donation and the reasons for requesting a refund as soon as is reasonably practicable. The Foundation will assess your request, following which it shall make a decision, at its absolute discretion, as to whether some, or all, of the requested refund shall be granted.

5. Information on this Site and thinks to third parties

Your information

5.1 You acknowledge and agree that all information you provide is complete, correct up to date and accurate and that you will ensure that when such information is no longer complete, correct, up to date and/or accurate, you will update it as soon as reasonably practicable.

5.2 You acknowledge and agree that, by providing any information on the Site, you are granting the Foundation a perpetual, non-exclusive, irrevocable, royalty-free, worldwide licence to use, copy, modify, display, distribute, download, store, reproduce, transmit, publish, transfer or adapt any of the information you provide.

5.3 You acknowledge and agree that The Foundation may retain copies of any information you provide and disclose any such information to a third party if The Foundation is of the belief, in its sole discretion, that such disclosure is necessary to:

(a) protect any aspect of the Site or any rights of the Foundation, legal or otherwise;

(b) comply with any Court order or legal proceedings; or

5.4 The Foundation will always use any and all information you provide in accordance with the terms of its Privacy Policy.

Third party information

5.5 The Foundation does not screen any third party material posted to the Site, including any material posted by providers of Experiences (“Experience Providers”), and does not guarantee the reliability, accuracy, completeness or validity of any third party material. By using the Site, the Services and/or any Experiences, you acknowledge and agree to bear all liability in relation to any inaccuracy or omission in any of the material on the Site, whether such material is provided by you, a third party or any other user of the Site.

Links to third parties

5.6 The Site contains links to external sites. The Foundation shall not be responsible for any material contained on the content of those sites, nor should it be accepted that the Foundation has reviewed or approved such sites. Use of any such sites is entirely at your own risk, and you acknowledge and agree that you shall bear all liability arising from your use of any external site.

5.7 Where you enter the site of any Experience Provider for the purposes of purchasing tickets for an Experience, you acknowledge and agree that you will comply with and adhere to any terms and conditions contained on that site.

6. Experiences

Eligibility

6.1 If the Foundation deems you to be eligible to be a Member, the Site will display the Experiences which you are eligible to register for. When registering for an Experience, you may be taken to the Experience Provider’s site, and you acknowledge and agree that clauses 5.6 and 5.7 shall apply in such circumstances.

Foundation responsibilities

6.2 After the Member registers their interest in the Experience, the Foundation shall be responsible for paying the cost of that Experience to the Experience Provider.

Experience Provider responsibilities

6.3 For the avoidance of doubt, the Foundation shall not be responsible for the fulfilment, delivery and redemption of any tickets or other entry passes to the Experience, which shall be the responsibility of the Experience Provider.

6.4 Under no circumstances shall the Foundation be held liable for any failure of an Experience Provider to accord with its responsibilities under clause 6.3.

6.5 Notwithstanding the above, where an Experience Provider does not fulfil, deliver or redeem the tickets or entry passes as required, the Foundation shall use all reasonable endeavours to assist the Member to facilitate the fulfilment, delivery or redemption of the tickets or entry passes.

7. Intellectual Property

Copyright

7.1 In these Terms, the term “Proprietary Content” means:

this Site;
all of its content (including all of the text, graphics, designs, software, data, sound and video files and other information contained in this Site, and the selection and arrangement thereof); and
all software, systems and other information owned or used by the Foundation in connection with the Services and/or Experiences offered through this Site (whether hosted on the same server as this Site or otherwise).

7.2 All Proprietary Content is the property of the Foundation or its licensors (as applicable) and is protected by Australian and international copyright laws. You must not reproduce, transmit, republish or prepare derivative works from any of the Proprietary Content, except as expressly authorised by these Terms or with the prior written consent of The Foundation or the other copyright owner (as applicable).

7.3 You may download and print out content from this Site only for your own personal and non-commercial use and provided that you do not remove or modify any copyright, trademark or other proprietary notices. The foregoing does not give you any ownership of, or any other intellectual property interest in, any content retrieved from the Site and may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability.

Trademarks

7.4 The look and feel of this Site (including all button icons, scripts, custom graphics and headers) are the trademarks, service marks and/or trade dress of The Foundation. These trade marks, service marks and trade dress may not be used, copied or imitated, in whole or in part, without the prior written consent of The Foundation.

User Content

7.5 In these Terms, the term “User Content” means any and all content that is submitted, posted or otherwise added to this Site by any user, such as comments, forum posts, chat room messages, reviews, ratings and feedback.

7.6 This Site contains some features that enable you and other users to upload User Content. The Foundation reserves the right to display, refuse to display, remove and/or amend all or any part of any User Content at its absolute discretion. In respect of any User Content that you upload, you:

represent and warranty to the Foundation that your sharing of that User Content does not infringe any copyright or other legal right of any other person;
grant to the Foundation a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform and otherwise exploit all or any part of that User Content in any way at the Foundation’s absolute discretion;
agree and warrant that your User Content is truthful and not misleading, not deceptive or materially inaccurate in any way, including in relation to the availability, nature, terms or conditions or any other matter relating to the Services or Experiences being offered; and
acknowledge that we cannot and do not assume any liability for User Content, including but not limited to, incompleteness, inaccuracies or infringing materials and, as between you and the Foundation, you hereby assume all risk of harm or injury resulting from any use or reliance on any information published or disseminated within the Site including User Content.

Copyright claims

7.7 If you believe that our Site contains any material that infringes upon any copyright that you hold or control, or that users are directed through a link on this Site to a third party website that you believe is infringing upon any copyright that you hold or control, you may send a notification of such alleged infringement to us in writing.

7.8 Such notification should identify the works that are allegedly being infringed upon and the allegedly infringing material and give particulars of the alleged infringement. In response to such a notification, we will give a written notice of a claim of copyright infringement to the provider of the allegedly infringing material. If the provider of that material does not respond to us in writing denying the alleged infringement within 14 days after receipt of that notice, we will remove or block the allegedly infringing material as soon as is reasonably practicable.

7.9 If the provider of that material responds to us in writing denying the alleged infringement, we will, as soon as is reasonably practicable, send a copy of that response to the original notifying party. If the original notifying party does not, within a further 14 days, file an action seeking a court order against the provider of the allegedly infringing material, we may restore any removed or blocked material at our discretion. If the original notifying party files such a legal action, we will remove or block the allegedly infringing material pending resolution of that legal action.

8. Disclaimer of Warranties

8.1 To the maximum extent permitted by law, the Foundation and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to you or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, these Terms or the use of this Site by you or any other person.

8.2 This Site is provided strictly on an “as is” basis. To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of this Site or any of its content, and in particular do not represent, warrant or guarantee that:

the use of this Site will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;
this Site will meet your requirements or expectations;
anything on this Site, or on any third-party website referred or linked to in this Site, is reliable, accurate, complete or up-to-date;
the quality of any Products, information or other material purchased or obtained through this Site will meet any particular requirements or expectations;
errors or defects will be corrected; or
this Site or the servers that make it available are free of viruses or other harmful components.

9. Limitation of liability

Exclusion of liability

9.1 To the maximum extent permitted by law, the Foundation and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to you or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, these Terms or the use of this Site by you or any other person.

Remedies limited

9.2 To the maximum extent permitted by law, the Foundation and its officers, employees, agents, consultants, licensors, partners and affiliates expressly limit their liability for breach of any non-excludable condition or warranty/guarantee implied by virtue of any legislation to the following remedies (the choice of which is to be at the Foundation’s sole discretion):

in the case of an Experience, to any of the following:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods or of acquiring equivalent goods; or
the payment of the cost of having the goods repaired; and
in the case of an Experience;
the replacement of the Experience or the supply of equivalent Experiences; or
the payment of the cost of replacing the Experience or of acquiring equivalent Experiences; and
in the case of services:
the supply of the services again; or
the payment of the cost of having the services supplied again.

Release

9.3 You agree that your use of this Site is at your own discretion and risk. You agree to release the Foundation and its officers, employees, agents, consultants, licensors, partners and affiliates from any claim, demand or cause of action that you may have against any of them arising from these Terms or the use of this Site by you or any other person. The Foundation may plead this release as a bar and complete defence to any claims or proceedings.

Force majeure

9.4 To the maximum extent permitted by law, and without limiting any other provision of these Terms, the Foundation excludes liability for any delay in performing any of its obligations under these Terms where such delay is caused by circumstances beyond the reasonable control of the Foundation, and the Foundation shall be entitled to a reasonable extension of time for the performance of such obligations.

10. General

Interpretation

10.1 In these Website Terms and Conditions of Use, the following rules of interpretation apply:

headings are for reference purposes only and in no way define, limit or describe the scope or extent of any provision in these Terms;
these Terms may not be construed adversely against The Foundation solely because The Foundation prepared them;
the singular includes the plural and vice-versa;
a reference to a “person” includes an individual, a firm, a corporation, a body corporate, a partnership, an unincorporated body, an association, a government body or any other entity; and
the meaning of general words is not limited by specific examples introduced by “including”, “for example”, “in particular” or similar expressions.

Notifications

10.2 The Foundation may provide any notification for the purposes of these Terms by email.

Costs

10.3 Except as specifically provided in these Terms, each party must bear its own legal, accounting and other costs associated with these Terms.

Assignment

10.4 You may not assign, transfer or sub-contract any of your rights or obligations under these Terms without the Foundation’s prior written consent.

10.5 The Foundation may assign, transfer or sub-contract any of its rights or obligations under these Terms at any time without notice to you.

Third Party Rights

10.6 The agreement set out in these Terms are between you and us and no other person shall have any rights to enforce any of its terms.

No waiver

10.7 Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver. Any failure by the Foundation to act with respect to a breach by you or others does not waive the Foundation’s right to act with respect to that breach or any subsequent or similar breaches.

Severability

10.8 The provisions of these Terms are severable and, if any provision of these Terms is held to be illegal, invalid or unenforceable under present or future law, such provision may be removed and the remaining provisions shall be enforced.

Variation

10.9 The Foundation reserves the right to amend these Terms and any other policy on this Site at any time in its sole discretion and any such changes will, unless otherwise noted, be effective immediately. Your continued usage of this Site will mean you accept those amendments. We reserve the right, without notice and at our sole discretion, to change, suspend, discontinue or impose limits on any aspect or content of this Site or the Services or Experiences offered through this Site.

10.10 You may only vary or amend these Terms by written agreement with the Foundation.

Entire Agreement

10.11 These Terms, together with our Privacy Policy, sets out the entire agreement between you and us in respect of your use of our Site and the Services and Experiences offered through this Site.

Governing law and jurisdiction

10.12 These Terms will be governed in all respects by the laws of New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.