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Terms and Conditions

1. AGREEMENT

1.1 This document contains the terms and conditions on which We grant You the right to Access and use Our Service. You must read the document from start to finish. Only if You agree with all its terms and conditions should You Access the Service.

1.2 When You click “I Agree” in the sign up process for the Service on Our Website an agreement is made between:
(a) A Talking Family Tree Pty Ltd, (Us); and
(b) the person who clicks “I Agree” (You).
2. ACCESSING AND USING OUR SERVICE
2.1 We grant to You a non-exclusive, non-transferable, revocable, limited right to Access and use the Service via the internet:
(a) to receive the features and benefits of the relevant Service Plan for the Time Period during the Term (and subject to any Minimum Term) subject to any other limitations of use, all as specified in the Service Plan; and
(b) only for the purpose of informing Your family members about their family ancestry in a domestic (non-commercial) setting.
2.2 When You use the Service You must ensure that each person to whom You give Access to use the Service:
(a) gives their informed consent for any Personal Information that they enter about themselves into the Service;
(b) prior to entering Personal Information about any other living person, obtains the informed consent from each living person about whom they enter Personal Information in to the Service,

for that Personal Information to be shared with any other person who is given Access to the Service (and/or who is able to download that Personal Information from the Service and/or who may see that Personal Information once downloaded). This consent must be obtained from everyone whose Personal Information is entered into the Service, including all persons who are in sound recordings, photographs, pictures, video or any digital medium.

2.3
You acknowledge and agree that You (and not Us):
(a) are responsible for the creation, posting, accuracy, updating, backing up and maintenance of any Ancestry Data;
(b) must manage, renew, create, delete, edit, maintain, back up and otherwise control the editorial content of any Ancestry Data;
(c) are responsible for complying with all laws, including copyright law, Privacy Laws and laws relating to defamation or libel, that govern or affect the possession, use, disclosure or publication of any Ancestry Data;
(d) are responsible for ensuring that any person to whom You give access to the Services complies with the requirements of this Agreement and all laws, including copyright law, Privacy Laws and laws relating to defamation or libel, that govern or affect the possession, use, disclosure or publication of any Ancestry Data;
(e) are responsible for the acts and omissions of any person to whom You grant Access to use the Service.
2.4
If You wish to vary the Service, the level of Service Plan, add any components, features, benefits or service items that are offered as part of the Service that are available from Us, end a particular Service or terminate the Agreement, including all the Service, You may make the change using the Service Management Functionality within the Service. These changes will become effective on the first day of the following month unless stated otherwise in the Service Management Functionality within the Service. No refunds will be made for any Service paid for in advance when You end the Service in this way, including where You end the Service prior to the end of its Minimum Term.
2.5
If You do not use all of the Time Period or other components/features/benefits/service items of the Service during the relevant time set out in the Service Plan, then, unless expressly stated otherwise in the Service Plan, such component/feature/benefit/service item is forfeit with no recourse to Us.
2.6
You must obtain a valid licence for any Third Party Software that operates with the Service throughout the Term.
2.7
We have appointed a third party who We believe to be a professional and capable contractor to provide Us with hosting, disaster recovery and back up service for the Service and the data entered in it, including Ancestry Data. However owing to the nature of hosting, disaster recovery and back ups We do not warrant or guarantee that:
(a) the Service will be uninterrupted or error free:
(b) any data, including Ancestry Data will be backed up and/or recoverable by Us.
The features of the Service enables You to easily download and save Your Ancestry Data to another location at any time during the Term, and it is Your responsibility to download and back up that data at regular intervals (and to verify the completeness of the back up) to ensure that You do not lose any of that data. You must not rely on Our back ups of that data. We take any back ups for Our own benefit, and these back ups are not available to You.
2.8
We may change the features, benefits or service items of any Service from time to time in Our discretion. If the changed features, benefits or service items will deprive You of more than an insubstantial benefit of that Service then You may give Us written notice of that fact within 15 days of the change. If We receive such a notice from You and are unable to agree with You an acceptable alternative within 30 days of the date that We made the change then You may:
(a) continue to use that Service and the changed Service will become the new Service; or
(b) terminate that Service at any time up 30 days after the change was made. In this case We will provide You with a pro-rate refund of any Fees that have been paid in advance for the Service that will not be provided (after deducting any monies owed by You to Us), and such payment will be Our entire liability and Your sole remedy in connection with the changed Service and/or termination.
2.9
We are not responsible for any delays, delivery failures or any other loss or damage, including breach of Privacy Law, resulting from the transfer of data over communications networks (other than the Network) or facilities, including the internet, and You acknowledge and agree that the Service may be subject to limitations, delays or other problems inherent in the use of such communications.
2.10
During the Term:
(a) You may notify Us of any defect that You believe is in the Service using the process set out in the Service and We will use reasonable efforts to remedy any material defects in the Service in a timely manner;
(b) We may implement any new version of the Service (including adding new features or removing existing features) as part of Our product roadmap, correct defects in the Service, perform maintenance, on or vary the Hosted Environment, Network, data center, other infrastructure, hardware, software (including installing updates or new releases) or other material that supports the Service in Our absolute discretion, and without liability or prior notice to You. We do not guarantee that any change, addition, deletion, error correction, patch, update or new version of the Service (or any part of it) will be compatible with any of Your Ancestry Data, applications, Third Party Software, other software or interfaces that connect to or interface with the Service.
2.11
The Term will be renewed automatically at the end of the current Term unless either party gives the other party written notice at least 15 days prior to the end of the then current Term that it does not wish for the Agreement to renew. You may also use the Service Management Functionality to terminate this Agreement.
2.12
Any renewal of the Term will be for the same period of the Term as the previous period (including any Minimum Term) and will be on the terms and conditions, Fees and Taxes, descriptions of the Service in the Service Plan and limitations of use that are applicable at the time of renewal.
3. RESTRICTIONS
3.1
Nothing in this Agreement permits You to:
(a) copy, adapt, modify, translate, publish, communicate to the public, or create any derivative work or translation of the Software or Service, unless expressly permitted by law or this Agreement;
(b) use any of the Service for the commercial benefit of any person, including You;
(c) sub-license, lease, rent, loan, assign, novate or otherwise transfer any part of the Software or Service or the benefit or burden of this Agreement in whole or in part to any third party;
(d) reverse engineer, reverse compile, de-compile or disassemble the object code of the Software or any part of the Software, or otherwise attempt to derive the source code of the Software, except to the extent permitted by law;
(e) remove, alter or obscure any of Our Marks, third party trade marks/logo or copyright notices, any other proprietary right notice, any disclaimer, any restricted use notice or safety notice;
(f) use the Service for the purpose of building a competitive product or Service or copying its features or user interface;
(g) attempt to download or Access the object code or source code of the Software;
(h) use the Service to display, store, process or otherwise use any data (in any format, and whether readable by humans or by machines, and including data that is Ancestry Data) that, in Our opinion:
(i) infringes any person’s Intellectual Property Rights, right to privacy, right to keep confidential information confidential, right to publicity or induces any person to breach a contract;
(ii) is unlawful (including breaching laws relating to the wrongful distribution of email or other electronic messages “spam”), discriminatory, derogatory, defamatory, slanderous, malicious, obscene, contains child pornography or is immoral;
(iii) contains any virus, Trojan horse or other malicious code, or is used to gain unauthorised access to, does harm to, wrongfully intercepts, expropriates, accesses or uses for any wrongful purpose, any person’s hardware, software, network or data;
(iv) wrongly identifies, or disguises, the sender or place of origin of any communication;
(v) contains links to any other website that contains information that is of a type described in this clause 3.1(h);
(i) exceeds “fair use” by using a disproportionate or inappropriate amount of the infrastructure, storage or resources that are used to operate the Service;
(j) access, monitor, copy, republish, download, display, post or transmit any part of the Service by any means, including electronic, mechanical or recording, or by using any robot, spider, scraper or automated process or manual process, or by deep linking to any part of the Service;
(k) bypass or circumvent, or attempt to bypass or circumvent any measure that is designed to limit access to any part of the Service, including any Service Management Functionality, except to the extent permitted by law;
(l) frame, mirror or otherwise include any part of the Service in any other website or application;
(m) use the Service in any way that could endanger, disable, impair or compromise Our systems or security, or interfere with other users;
(n) allow any part of the Service to become the subject of any charge, lien, encumbrance or security interest; or
(o) deal in any other manner with any or all of Your rights and obligations under this Agreement.
3.2
You acknowledge and agree that:
(a) the Service includes comprehensive audit and verification features, which track and record individual’s use of the Service in detail;
(b) We may inspect the usage logs, audit and verification features in the Service for the purposes of ensuring that You are complying with the terms of this Agreement; and
(c) We may delete the relevant Ancestry Data and/or suspend or prevent Access to the Service if:
(i) there is a breach the provisions of clause 3.1(h) or the law; or
(ii) We act in good faith to comply with Our understanding of the law as it relates to requiring Us to delete or not display or publish certain data.
4. STANDARDS OF SERVICE
4.1
We will use all commercially reasonable efforts to ensure that the Hosted Environment on which the Software operates and the Network are at least 99% Available measured across each full calendar month during the Term, excluding any outage arising from any Scheduled Maintenance or any outage caused or contributed to by any Reasonable Excuse
4.2
We shall measure Availability over each full calendar month and will determine the calculation method for the Availability percentage and Our calculation shall bind the parties conclusively.
4.3
We will schedule to perform all Scheduled Maintenance 9 pm and 6 am AEST on any day that is not a Business Day. We will use all commercially reasonable efforts to ensure that Scheduled Maintenance does not exceed 6 hours per calendar month.
4.4
4.4 Where You are entitled to the benefits of the statutory guarantees under clauses 54 to 59 and/or 60 to 62 of the Australian Consumer Law, then Regulation 90 (issued under that Act) applies.
4.5
Accordingly, A Talking Family Tree Pty Ltd provides You with the following information as is required by Regulation 90:
The services that are provided to remedy any defect in the Service are a “Warranty Against Defects” as defined in Regulation 90. These services are provided by A Talking Family Tree Pty Ltd (ABN 14 636 719 812) of 173 Thompson St Drummoyne NSW Australia, telephone number +61 404797174, email address info@atalkingfamilytree.com.
To make use of this warranty against defects service You must give Us written notice to the address above (including by email), within the Term setting out details of the issue, including wherever possible, a screen shot of the issue or any error message.
Once you have done these things:
  • You must, at Your cost, provide Us with remote access to the Service in order for use to diagnose and remedy the Service; and
  • We will use Our best efforts to re-perform the service or remedy the defect in a timely manner.
If We cannot re-perform the service or remedy the defect in a timely manner We will provide you with a refund of the Fees paid for the Service for the month in which the defect occurred, or if the defect is a major defect, We may also terminate the Service and provide you with an additional refund of any Fees that you may have paid in advance for the Term of the Service that is no longer going to be provided.
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
  • to cancel your service contract with us; and
  • to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”
The benefits that We provide to consumers under Our warranty against defects service are in addition to any other rights or remedies a consumer may have in respect of these goods or services under the Australian Consumer Law.
Our warranty against defects does not cover any defects that are caused by any of the following:
  • misuse, incorrect use of or damage to the Service from whatever cause (other than any act or omission by Us);
  • any failure of any technology that is connected to any of the technology that is the subject of the Service;
  • data that is entered into the technology that that is the subject of the Service
  • any breach of Your obligations under the Agreement;
  • having the Service maintained by a third party; or
  • any use that is contrary to the instructions provided by Us.
You are responsible for any expenses you incur in using any of Our warranty against defects service, except where it is stated that We are paying the relevant costs. If You submit a claim for these expenses to Us (including the original receipts or other acceptable proof of payment), and We have failed to meet any statutory guarantees under the Australian Consumer Law and as a result You are entitled to reimbursement of these costs, We will reimburse you for those costs
4.6
Where You are entitled to a statutory guarantee under clauses 54 to 59 of the Australian Consumer Law then to the extent that We fail to comply with such guarantee, Our liability for a failure to comply with such statutory guarantee is limited to one or more of the following, at Our option:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(d) the payment of the cost of having the goods repaired,
unless it is not fair or reasonable for Us to rely on this term of the Agreement.
4.7
Where You are entitled to a statutory guarantee under clauses 60 to 62 of the Australian Consumer Law then to the extent that We fail to comply with such statutory guarantee, Our liability for a failure to comply with such statutory guarantee is limited to one of the following, at Our option:
(a) supplying the services again; or
(b) payment of the cost of having the services supplied again,
unless it is not fair or reasonable for Us to rely on this term of the Agreement.
5. FEES AND TAXES
5.1
Where We enter into and/or renew an agreement for the Service using the process on Our Website then You must pay Us the Fees and related Taxes using the Approved Payment Mechanism, in the currency stated on the Website, in accordance with the payment process on the Website. We will issue You with an invoice/receipt at the time of payment/receipt.
5.2
Where Our Fees are charged based on a Time Period or other component/features/benefits/service items of the Service then at the end of each month We will calculate the Fees due based on Your usage of the Service and You must immediately pay Us (or We may deduct from Your Approved Payment Mechanism) the Fees and related Taxes due for such usage.
5.3
If We allow You to pay the Fees in instalments or in periodic payments, it is acknowledged and agreed that the entire amount (the sum of all instalments or periodic payments) is due on the first day of the Service (as applicable), but payment may be received in the instalments or periodic payments set out on Our Website. You must pay the instalment or periodic payment by the date of the installment or periodic payment set out on Our Website.
5.4
We may change the Fees for any Service at any time by updating the Fees on the Website. The updated Fees will apply to the relevant Service from the end of the next calendar month or from the end of any Minimum Term, whichever is the later.
5.5
All amounts that are payable under this Agreement by You are non-cancellable and non-refundable and must be paid without set off or deduction.
5.6
In addition to the Fees payable in accordance with the Agreement, You must pay to Us an additional amount equal to any Taxes that are due.
5.7
You must pay a late charge for any failure to make any payment by the date required under the Agreement, calculated daily using a rate that is 4% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by Us, both dates inclusive.
5.8
Where the Fees, expenses and Taxes are denominated in a currency other than the currency that is used as the default currency of Your Approved Payment Mechanism (i.e. Your Approved Payment Mechanism is not issued in the country which uses the currency of payment), You agree:
(a) to pay any charge from the provider of the Approved Payment Mechanism for an international transaction;
(b) to use the exchange rate used by the provider of the Approved Payment Mechanism for the conversion of the Fees, Taxes or other amounts payable under this Agreement into the currency We use;
(c) that the net amount that is to be received by Us must always be the Fees, Taxes and other amounts that are dominated in the local currency specified in this Agreement or on the Website (as applicable).
5.9
You irrevocably authorize Us to deduct from any Approved Payment Mechanism that You have used to pay any amount under this Agreement or for which You have provided the details to Us, any:
(a) Fees and Taxes that are due under this Agreement;
(b) charge backs or fees, including any related Taxes, incurred by Us for any failed transaction from the Approved Payment Mechanism, as well as Our then current administration fee for dealing with any failure to receive payment; and
(c) amount payable as damages, losses or expenses, or any amount payable under an indemnity, arising out of or in connection with this Agreement.
5.10
If there is any failure to make payment by the Approved Payment Mechanism by the due date for any reason, including that the Approved Payment Mechanism ceases to be valid, ceases to be authorised for debiting any amount stated in this Agreement or there is insufficient funds in the relevant account, then You must within 7 days:
(a) provide an alternative Approved Payment Mechanism and authorise all amounts due to be deducted from that Approved Payment Mechanism; and/or
(b) make payment of all amounts due by another payment method agreed with Us.
6. PROPRIETARY RIGHTS
6.1
As between You and Us, You own all Ancestry Data.
6.2
You grant Us, Our Affiliates and their respective contractors the right to use, copy, modify and otherwise deal with any Ancestry Data in so far as is necessary, convenient or desirable for Us to perform Our obligations, or exercise Our rights, under this Agreement or for Us to meet any obligation under the law.
6.3
You acknowledge and agree that We are the owner and/or licensor of Our Marks and that all goodwill arising out of Your use of Our Marks under this Agreement shall inure to Us. You will not acquire any right to, or interest in, any of Our Marks.
You must not at any time or in any way indicate Your ownership of, or any right in, Our Marks and You must not contest the right of Us or any of Our Affiliates to the use of any of Our Marks.
6.4
All Intellectual Property Rights that are created by any person that are adaptations, translations and derivative works in the Software or Service and any adaptations, translations and derivative works on any of them, are and shall remain the exclusive property of Us (and Our licensors, if any) or shall vest in or be assigned or transferred to Us immediately upon creation, as the case may be.
6.5
Except for the rights expressly granted by Us to You under this Agreement:
(a) We and Our licensors, if any, reserve all right, title and interest in or to the Software, Service and all Intellectual Property Rights in them;
(b) no right, title or ownership interest in or to the Software or Service, whether by implication, estoppel or otherwise, is granted, assigned or transferred to You under or in connection with this Agreement.
6.6
You acknowledge and agree that the unauthorised disclosure, use, reproduction or copying of the Software or Service, may cause Us serious financial loss that may not be adequately compensated by monetary damages. Accordingly, in the event of any unauthorised disclosure, use, reproduction or copying of the Software or the Service, You agree that We shall have the right to seek injunctive relief to stop such unauthorised disclosure, use or copying.
6.7
If You provide Us with any feedback, comments or suggestions relating to the Service, Our products or other services, (Feedback), You grant Us an irrevocable, non-cancellable, worldwide, royalty-free, license to use, copy, adapt, translate, create derivative works from, sub-license or otherwise exploit in any way (including without hindrance, restriction or subject to any exercise of any person’s moral rights) that Feedback for any purpose, including to assist Us to develop or improve current Service, products or other services, or to assist Us develop or improve future products and services.
7. LIMITATION OF LIABILITY
7.1
You acknowledge and agree that the Fees are set at a level that reflects the risks and rewards available to Us as set out in this Agreement, and in particular and without limitation, the exclusions and limitations on Our warranties, obligations and liabilities, Your indemnity, the process of automatic renewal of the Agreement, Our ability to update and change the features and functions of the Service, and the underlying environment, network, infrastructure or premises that is used to provide the Services.
7.2
For any claim that is not provided for in clauses 4.6 or 4.7, then to the extent permitted by law, Our liability to You for any claim (or series of connected claims) whether it be in contract (including under an indemnity), tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with Agreement shall be limited to the greater of:
(a) $1,000; or
(b) the Fees paid for the Service from which the claim arises.
7.3
You acknowledge and agree that owing to the nature of the Software or Service, We do not represent or warrant that:
(a) the Software or Service, will meet Your or any users’ particular needs or purposes;
(b) the Software or Service will be fit for any particular purpose or be of merchantable quality;
(c) the quality, accuracy, features, functions, benefits or availability of any Third Party Software;
(d) the Software will be, or remain compatible with, any Third Party Software;
(e) Access to the Software or Service will be continuously available; or
(f) the Software or Service will be error free.
7.4
You must indemnify Us, Our Affiliates and all their respective contractors and pay any loss, damage or expense (including reasonable lawyers’ fees) suffered or incurred by any of them arising out of or in connection with:
(a) breach of any of the provisions in clauses 2.1, 2.2, 3.1, 9.5 or 9.6;
(b) any action taken by Us in connection with clause 3.2(c),
except to the extent that the loss, damage or expense was directly caused by Our breach of contract or negligence
8. TERMINATION
8.1
We may immediately terminate this Agreement and/or suspend Access to the Service by giving You written notice if:
(a) You breach any of the provisions of clauses 2.1, 2.2, 3.1, 9.5 and 9.6;
(b) You breach any other provision of the Agreement and You do not remedy it within 14 days of Us providing You written notice of the breach;
8.2
In addition to Your right to terminate the Agreement set out in the clauses 2.4, 2.8 or 2.11, You may immediately terminate this Agreement for cause by giving Us written notice if We:
(a) breach any provision of this Agreement and We do not remedy it within 14 days of You providing Us written notice of the breach; or
(b) cease to carry on business, are unable to pay Our debts as they fall due, enter into liquidation or has a controller, managing controller, liquidator or administrator appointed.
8.3
You may also terminate this Agreement in accordance with any rights You may have under the Australian Consumer Law.
8.4
If this Agreement is terminated:
(a) any right to Access and use the Service terminates immediately;
(b) any unpaid instalments or periodic payments must be paid immediately.
8.5
You are solely responsible for ensuring that You have extracted any of Your information, including Ancestry Data that is in the Service prior to the end of the Term. We may, but are under no obligation to, delete all Your information, including Ancestry Data (and including any back ups of that information) that is in the Service at any time after the end of the Term.
8.6
Any termination of this Agreement shall not prejudice, limit or restrict any other rights or remedies either party may have arising prior to such termination. To the extent permitted by law, We shall be under no obligation to refund any amounts paid by You for any of the Service that has been provided prior to any termination of this Agreement
9. GENERAL
Notices
9.1
Any notice that is given under this Agreement:
(a) by Us; may be:
(i) posted using pre-paid priority letter post to You at any address that You have provided Us for sending any invoice;
(ii) emailed to You at any email address provided by You;
(iii) posted on the Website; or
(iv) included on any invoice (which may be emailed or posted to You);
(b) by You; must be posted to Us using pre-paid priority letter at the address stated on the Our Website as Our global head office and addressed to the Chief Executive Officer.
9.2
A notice is deemed to be received:
(a) when posted from Australia to an address in Australia using pre-paid priority letter; within 5 Business Days after the date when it was posted;
(b) when posted with pre-paid post internationally, within 7 Business Days of the date when it was posted;
(c) when emailed; within 1 Business Day of the time that the email was sent, provided no notice of failure has been received by the sender within that Business Day; or
(d) within 10 days of being posted on the Website. You are responsible for ensuring that You check Our Website regularly to see any notice that is posted there.
9.3
You may send Us any notice relating to a claim under the Australian Consumer Law in accordance with the Australian Consumer Law.
Relationship of Parties
9.4
The parties to this Agreement are independent contractors. Nothing in this Agreement shall be deemed to create an employment, association, partnership, fiduciary or joint venture relationship between the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
Compliance with Laws
9.5
You must comply with all laws which are relevant to You performing its obligations under this Agreement.
Assignment
9.6
You must not assign or transfer this Agreement or any rights or obligations under this Agreement, in whole or part, without Our prior written consent.
9.7
We may assign or transfer this Agreement, in whole or part, without Your consent to any of Our Affiliates, or to any person who acquires Us or Our Business. We must obtain Your prior written consent for any other assignment or transfer. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. We may disclose any of Your Personal Information which is reasonably necessary to affect any assignment or transfer.
Waiver
9.8
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy
Remedies
9.9
Except as specifically provided otherwise in this Agreement, the rights and remedies provided under this Agreement are cumulative and in addition to, and not exclusive of, any rights or remedies provided by law.
Severability
9.10
If any part of this Agreement is determined to be invalid, illegal or unenforceable by any court or competent authority, such part will be severed from the remainder of the Agreement and the remaining provisions will continue in force.
9.11
If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Agreement
9.12
Subject to clauses 2.4, 2.8, 2.11 and 2.12 this Agreement, or any part of it, may be varied by the parties agreeing to the Variation in writing (and the Variation will be binding when both parties have signed the Variation).
9.13
The parties are entitled to rely on any notice or communication in electronic format, including any facsimile or email, that on its face appears authentic, and that has the purported author’s name on it to the same extent as if it were a document written by the author. The parties consent to this Agreement being signed or varied through electronic communication.
9.14
To the extent permitted by law, this Agreement constitutes the entire agreement between the parties regarding the subject matter and supersedes all prior or contemporaneous agreements, arrangements, understandings and communications, whether written or oral.
9.15
All clauses which naturally survive termination of the Agreement will survive termination of this Agreement.
Export
9.16
You acknowledge and agree that the Software may be subject to applicable export and import laws. You agree not to export the Software or any direct product thereof, directly or indirectly in violation of these laws, nor will they be used for any purpose prohibited by these laws, including nuclear, chemical or biological weapons proliferation.
Governing Law
9.17
This Agreement will be governed by the laws of New South Wales, Australia, without regard to its conflict of law principles. The parties submit to the exclusive jurisdiction of the court in New South Wales, Australia.
10. Definitions
In this Agreement the following capitalised words have the following meaning given to them, unless the context requires otherwise.
10.1
Access means obtaining access to the Service via the internet.
10.2
Agreement means the terms and conditions in this document and the Contract Details and the Service Plan completed or selected by You when You sign up for the Service on Our Website, as may be amended from time to time.
10.3
Affiliate means any entity that is under the effective control of the entity that ultimately has effective control of the first-mentioned entity.
10.4
Ancestry Data means any information, data, text (whether or not perceptible by users), metatags, digital information (including data, software, audio, video, graphics, photographs or artwork), e-mail, chat room content, bulletin board postings, or any other items or materials that are provided by or otherwise permitted by, You to be entered in, or processed by, the Service (including data accessed from or in connection with Third Party Software).
10.5
Approved Payment Mechanism means any Visa, MasterCard, debit card, charge card, BPAY, PayPal or other payment mechanism that We support from time to time as an acceptable payment method.
10.6
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth).
10.7
Availability (and Available) means any period when the Hosted Environment on which the Software is running and the Network are operating in accordance with the manufacturer’s or supplier’s documentation.
10.8
Business Day means any weekday that is not a public holiday in New South Wales.
10.9
Contract Details means Your identity, billing details and other details that are selected or completed by You at the time when You complete the sign on process to the Service on the Website or at the time that You make a change using the Service Management Functionality.
10.10
 Fees means the amount payable for the Service, including any features, benefits or other service items set out in the Service Plan, as well as any Fees for using an Approved Payment Mechanism, exclusive of Taxes, as specified on the Website.
10.11
 Hosted Environment means the server and/or processing capacity operating system software, database and other equipment provided as part of the Hosted Environment, (whether using shared, virtual or dedicated software and/or equipment) on which the Software operates.
10.12
 Intellectual Property Rights means copyright, moral rights, trade mark, design rights, service marks, patent, semiconductor or circuit layout rights, trade secrets, know-how, database rights or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing in anywhere in the world, or protected by statute from time to time.
10.13
 Minimum Term means the minimum period for which You must pay to Access and use the relevant Service, feature, benefit or service item, as set out in the Contract Details.
10.14
 Network means the telecommunications network comprised of equipment, wiring and circuits within and between the network backbone nodes (points of presence) and the servers in the Hosted Environment. The term Network does not include any:
(a) circuits to a backbone node, customer premises or any network or equipment not owned or controlled by Us; or
(b) third party networks or equipment not owned or maintained by Us, including connections to peer networks and the internet.
10.15
 Online Help Documentation means the documentation related to the Service that is available online as part of the Service, which We may change from time to time, in Our discretion.
10.16
 Our Marks means all trade marks, service marks, logos or other words or symbols identifying the Software, Service or Our business.
10.17
 Personal Information means any information or data that is subject to any Privacy Law.
10.18
 Privacy Law means any law, regulation or common law which governs the use of information that is about, identifies or can be used to identify, any identifiable individual, or which is generally understood in the relevant jurisdiction to protect an individual’s privacy and/or to govern the collection, use, disclosure or transmission of Personal Information or data.
10.19
 Reasonable Excuse means:
(a) a failure or degradation of performance or malfunction resulting from scripts, data, applications, equipment, infrastructure, software, penetration testing, performance testing, or monitoring agents directed or provided or performed by You;
(b) planned outages, Scheduled Maintenance or announced maintenance or maintenance windows, or outages initiated by Us at the request or direction of You for maintenance, activation of configurations, backups or other purposes that require the service to be temporarily taken offline;
(c) unavailability of management, auxiliary or administration services, including administration tools, reporting services, utilities, or other services supporting core transaction processing;
(d) outages occurring as a result of any actions or omissions taken by Us at the request or direction of You;
(e) outages resulting from Your equipment, third party equipment or the data center infrastructure (including the data centers’ network connections to Our Network) not within Our sole control;
(f) events resulting from an interruption or shut down of the services due to circumstances reasonably believed by Us to be a significant threat to the normal operation of the services, the operating infrastructure, the data center from which the services are provided, access to, or the integrity of Ancestry Data (e.g., a hacker or a virus attack);
(g) outages due to system administration, commands, or file transfers performed by You;
(h) outages due to denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against parties (including carriers and Our other vendors) and other force majeure events;
(i) inability to access the services or outages caused by Your conduct, including negligence or breach of Your obligations under the Agreement,
(j) lack of availability or untimely response time of You to respond to incidents that require Your participation for source identification and/or resolution, including meeting Your responsibilities for any services;
(k) outages caused by failures or fluctuations in electrical, connectivity, network or telecommunications equipment or lines due to Your conduct or circumstances outside of Our reasonable control;
(l) any other circumstance or event that is outside of Our reasonable control.
10.20
 Scheduled Maintenance means the routine maintenance for the Software, Network and Hosted Environment that is recommended by the manufacturer or supplier of the Hosted Environment, Network or data center facility to prevent failures or defects, and includes any Software updates or new releases, and any updates, new releases, engineering changes or replacement/substitutions to any part of the Hosted Environment, Network or data center facility.
10.21
 Service means:
a) being granted Access to the Software specified on the Service Plan, and any new version of the Software that may be implemented into the Service by Us, in Our discretion and related Online Help Documentation, from the Hosted Environment via the Network (but excludes the internet and any data center facility networking that connects the end users’ device to Our Network);
(b) the provision of the website though which You Access the Service via the internet;
(c) any other feature, benefit or service item that is specified in the Service Plan.
10.22
 Service Plan means the description of the Service, the Service levels, the features, benefits or other service items, the Term, the Minimum Term (if any), any limitations of use, the Fees, including the metric used to calculate the Fees, related Taxes, and other details that are selected or completed by You at the time when You complete the sign on process to the Service on the Website or at the time that You make a change using the Service Management Functionality.
10.23
 Software means the object code version of Our software program (including the Online Help Documentation) that is part of the Service, and any update and new release that may be made available by Us in Our discretion. The term Software does not include any Third Party Software.
10.24
 Taxes includes goods and services taxes (GST), sales taxes, duties, withholding taxes, levies, imposts, charges or duties levied by any federal, state or local government which arise out of or in connection with the Software, Service or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on Our gross income.
10.25
 Term means the period for which You have acquired the right to Access the Service, which shall be a month unless specified otherwise in the Service Plan. The Term may be renewed in accordance with clauses 2.11 and 2.12.
10.26
 Third Party Software means software that is owned by any person other than Us or Our Affiliates and with which the Service is designed to integrate with, as well as any data that is stored in or processed by the Third Party Software which is accessed or used in any way by the Service, and the details of which are set out in the Online Help Documentation.
10.27
 Time Period means the maximum number of month/year periods or other time based metric set out in the Service Plan for which You are entitled to Access the relevant Service, feature, benefit or service item.
10.28
 Variation means any addition, deletion or substitution to any part of this Agreement that is made in accordance with this Agreement.
10.29
 You (and other grammatical forms of You) means the entity referred to in clause 1.2(b).
10.30
 We, Us, Our means A Talking Family Tree Pty Ltd, ABN 14 636 719 812.
10.31
 Website means Our website, currently at www.atalkingfamilytree.com
 

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