FOS - End User Agreement

This document sets out the terms and conditions that govern your access and use of this website.

1 DEFINED TERMS

  1. This clause 1 defines terms used in this agreement.
  2. Other terms are defined elsewhere in this agreement.

1.1 Participants

  1. ‘FOS’ means Jodie Day trading as ‘File On Style’ and, where it would be appropriate in the context, includes employees and contractors of Jodie Day.
  2. ‘User’ means any person registered as a user on the Website.
  3. ‘you’ means you, the individual using the Website as a Visitor or User.
  4. ‘Visitor’ means any person using the Website who is not a User.

1.2 Content

  1. ‘Content’ includes any written, pictorial, graphic, visual, audio, design, static or moving material, information or thing, taken individually or together (eg a compilation) depicted, embodied in or available at or within the Website, including written works (including this agreement), artistic works, photographs, sound recordings, films, animations, databases, logos, word marks and metadata, and copies of any of those things.
  2. ‘FOS Content’ means Content uploaded to the Website by FOS.
  3. ‘Intellectual Property’ means copyright, trade marks, designs, patents or circuit layouts, whether registered or not.
  4. ‘User Content’ means Content uploaded to the Website by a User.
  5. ‘Website’ means the File On Style website presently located at URL www.fileonstyle.com.

1.3 Actions

  1. ‘operating the Website’ includes any act related to operating the Website, including maintaining, uploading FOS Content, upgrading, downgrading, temporarily suspending, configuring, providing access to, promoting and marketing the Website, whether or not for commercial gain.
  2. ‘using the Website’ includes accessing, browsing, viewing, reading, creating user accounts, submitting personal information to, contributing User Content to or purchasing goods and services from the Website.
  3. ‘uploading’ includes programming, posting, emailing, transmitting, distributing or otherwise making available, publicly or privately, to or on the Website.

2 WEBSITE

  1. FOS may operate the Website in any manner, at or for any particular time or period of time.
  2. FOS may cease operating the Website at any time and without notice to you.
  3. FOS gives no warranty that its operation or your use of the Website will be continuous, uninterrupted or secure, or that the Website or User Content will not be interfered with or adversely affected by factors or circumstances outside of FOS’ control.

3 INTELLECTUAL PROPERTY AND CONTENT

3.1 Ownership

  1. Except as expressly set out in this agreement, you acknowledge that, as between you and FOS:
    • you do not own any Intellectual Property in FOS Content;
    • you do not own, or are entitled to exercise, any other rights in FOS Content.
  2. Except as expressly set out in this agreement, nothing in this agreement transfers ownership to you in, or licenses to you, any Intellectual Property or other right in FOS Content.
  3. FOS acknowledges that, unless you transfer ownership to FOS under this agreement or otherwise, FOS does not own any Intellectual Property in User Content you upload (‘your User Content’).
  4. Except as expressly set out in this agreement, nothing in this agreement transfers ownership to FOS in, or licenses to FOS, any Intellectual Property or other right in your User Content.

3.2 Licences

  1. To the extent that your bona fide use of the Website would infringe FOS’ or a third party’s Intellectual Property or other rights subsisting in or relating to FOS Content, and only to that extent, FOS authorises you to do such acts in connection with FOS Content as are reasonably necessary for the purposes of using the Website (‘User Licence’).
  2. The User Licence is non-exclusive, royalty-free, personal to you and otherwise not transferrable or sub-licensable, and continues at all times that this agreement is in effect.
  3. Subject to the FOS Privacy and Transaction Security Policy, to the extent that FOS’ operating the Website and otherwise exercising its rights would infringe your Intellectual Property or other rights subsisting in or relating to your User Content, you authorise FOS to do such acts in connection with your User Content as reasonably necessary for the purposes of operating the Website and otherwise exercising its rights (‘FOS Licence’). For the avoidance of doubt, the FOS Licence entitles FOS to do the following acts:
    • making and storing copies of your User Content on FOS’ databases, servers and other information storage media;
    • enabling the display of your User Content on the Website; and
    • communicating your User Content to the public via the Website.
  4. The FOS Licence is non-exclusive, royalty-free, worldwide, perpetual, irrevocable, and transferable and sub-licensable to third parties.

3.3 Infringement

  1. You acknowledge that:
    • nothing in this agreement authorises you to do;
    • FOS has not authorised, sanctioned, countenanced, approved or permitted your doing; and
    • FOS has taken reasonable steps to prevent your doing,
  2. You warrant that your use of the Website, including uploading User Content, will not infringe any Intellectual Property or other rights subsisting in or relating to any subject-matter.
  3. In the course of using the Website, you must not do any act that infringes any Intellectual Property or other rights subsisting in or relating to any subject-matter.  

3.4 Moral rights

You waive all right, title and interest you may have in any right, action or remedy against FOS for infringement of any moral rights in your User Content.

4 FOS’ SECURITY

4.1 Your obligations

  1. You must keep confidential any password, login or other information related to the integrity and security of the Website (‘your User Security Information’).
  2. If you become aware that any of your User Security Information has been lost, compromised or misappropriated, you must notify FOS immediately.
  3. Except in the course of using the Website bona fide, you must not modify or alter any part of the Website.
  4. You must not reverse engineer, infiltrate, sabotage or otherwise interfere with the Website or engage in any form of data extraction or data mining, or use any robot, botnet, spider or other automatic device or manual process in relation to any part of the Website.
  5. You must not upload any User Content containing or connected to any virus, worm, malware or other material that could damage the Website or FOS.
  6. You must not do any act that is likely to impose unreasonably or disproportionately large load on FOS’ infrastructure.

4.2 FOS’ rights

If you operate any botnet where a hostname is used as a command and control points, FOS may direct the relevant hostname to a honeypot, loopback address, logging facility or any other destination.

5 MISUSE OF THE WEBSITE

5.1 Your obligations

Each of the obligations below is to be read as a stand-alone obligation without limiting any other obligation. You must not use the Website for the purpose or effect of:

  1. creating a platform or vehicle for furthering political, religious or any other similar agendas;
  2. uploading User Content depicting any sexually explicit, pornographic or violent subject-matter;
  3. embarrassing, humiliating, defaming, compromising the privacy of, harassing or intimidating any person;
  4. offending ordinary, reasonable standards of decency and morality prevailing in Australia, including by using misspellings or other substitutes for offensive language;
  5. engaging in disruptive or anti-social online behaviour, including flaming, trolling, flooding, invading, impersonating others, off-topic messaging, uploading unnecessary ASCII art files, uploading multiple identical or hard-to-read or nonsense messages;
  6. infringing the Intellectual Property of any person, including FOS trade marks and copyright in FOS Content;
  7. embodying links to inappropriate websites, including websites associated with pornography, violence or gambling;
  8. disseminating surveys, contests, pyramid schemes, chain letters or any other form of spam;
  9. mining any database or cultivating information for any purpose;
  10. soliciting clients or candidates for any purpose;
  11. laundering money or other things of value; or
  12. engaging in any (other) unlawful activity.

6 ADDITIONAL WARRANTIES

6.1 Additional warranties you give

In addition to and without limiting any warranty you give elsewhere in this agreement, you warrant that:

  1. the purpose for which you intend to use the Website is bona fide;
  2. all personal information you upload will be true, accurate and complete;
  3. if your User Content includes a photograph depicting an identifiable or recognisable individual, you obtained the express or implied consent of that individual, or their parent or guardian if the individual was under the age of 18 years at the time, to take the photograph and upload it;
  4. if your User Content includes a photograph depicting a private, religious, culturally sensitive scene or site, you obtained the express or implied consent of the relevant party, authority or custodian of the scene or site to take the photograph and upload it;
  5. if your User Content includes a photograph depicting a dramatic, artistic, sporting or other performance, whether performed for profit or otherwise, you obtained the express or implied consent of the relevant individuals, host, administrator or other organisation to take the photograph and upload it;
  6. you do not rely on any representation or warranty from FOS that is not expressly contained in this agreement; and
  7. if you purchase goods or services via the Website, you are an authorised user of the payment method used to purchase the goods.

6.2 Additional warranties FOS does not give

FOS gives no warranty that:

  1. Content comprising:
    • third party product or service offerings, including product specifications, pricing, availability, performance and commentary; or
    • advice, tips, directions, guides, opinions or commentary,
  2. is true, accurate, complete or reliable;
  3. links to other websites, being links embodied on the Website, and the websites themselves, will be safe, appropriate, reliable, useful or are endorsed by FOS; or
  4. other Visitors or Users will not breach any agreement, policies or rules governing their use of the Website.

7 RESPONSE TO BREACH

  1. Notwithstanding any other provision of this agreement, if:
    • FOS believes that you are infringing or are likely to infringe Intellectual Property in any Content;
    • FOS receives a complaint or notice from a third party alleging that you are infringing Intellectual Property in any Content; or
    • you otherwise breach this agreement, including clauses 4.1, 5 and 6.1,
  2. FOS may do any or all of the following, with immediate effect and without notice to you:
    • investigate the matter;
    • modify, disable or delete your User Content;
    • modify, limit, disable or suspend your account pending the outcome of the investigation;
    • terminate your account;
    • supply such information (including personal information about you) to third parties (including private claimants, law enforcement, government or regulatory authorities) as appropriate, requested, directed or otherwise required by law; and
    • any other action FOS deems appropriate and that is not unlawful.
  3. You release FOS from and waive any right, action or remedy you may have against FOS for any liability or loss that you may incur as a result of FOS taking any action pursuant to this clause 7.

8 LIABILITY & INDMENITY

8.1 Your indemnity

  1. You indemnify FOS against any loss suffered by FOS:
    • as a result of any breach of this agreement (including its warranties) by you;
    • such loss including general loss, special (indirect, consequential, incidental) loss and pure economic loss (including loss of revenue or profits); and
    • including where such loss arises from legal action brought against FOS by a third party or brought by FOS against a third party.
  2. FOS gives no indemnity to you against any loss suffered by you:
    • as a result of any breach of this agreement (including its warranties) by FOS;
    • including general loss, special (indirect, consequential, incidental) loss and pure economic loss (including loss of revenue or profits); and
    • including where such loss arises from legal action brought against you by a third party or brought by you against a third party.
  3. For the avoidance of doubt, this clause 8 is subject to clause 9.7, which relates to compulsory provisions of this agreement.

9 THIS AGREEMENT

9.1 Formation

To the extent that FOS enables you to use the Website and you use the Website, you agree to be bound and abide by the terms and conditions of this agreement.

9.2 Duration

This agreement is and remains in effect indefinitely from the time you first become a Visitor or User.

9.3 Terms and conditions

  1. This agreement includes all other agreements, policies and rules relating to this Website:
    • referred to in this document; or
    • referring to this agreement in the documents embodying those other agreements, policies and rules (‘Other Agreements’)
  2. and this agreement hereby incorporates the terms and conditions of all Other Agreements. For the avoidance of doubt, the following policies are Other Agreements, whether going by the names below or similar names:
    • FOS Privacy and Transaction Security Policy;
    • FOS Shipping and Delivery Policy; and
    • FOS Returns Policy.
  3. To the extent there is any irreconcilable inconsistency between this agreement and any Other Agreement, the terms and conditions of this agreement prevail.
  4. Subject to clauses 9.3(a) and 9.5, this agreement:
    • governs all aspects of our enabling you to use, and your use of, the Website;
    • is the only agreement between FOS and you in relation to the Website; and
    • as a document, embodies all the express terms of the agreement.
  5. For the avoidance of doubt, this agreement supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to the Website.

9.4 Principles of interpretation of agreement

  1. In this agreement, unless expressly to the contrary and as appropriate in the context:
    1. an expression in the plural may be read in the singular, and vice versa;
    2. headings are for convenience only and do not affect the interpretation of this agreement;
    3. an expression reflecting a present state of affairs presumes the indefinite continuation of that state of affairs;
    4. a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things;
    5. a reference to an act includes an omission and to the causing to be done of that act or omission;
    6. a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;
    7. a reference to one alternative does not, of itself, exclude any other alternative;
    8. an expression of the exercise of right means the exercise of that right at the sole and absolute discretion of the relevant party;
    9. an expression prohibiting the doing of an act includes the prohibiting of:
      • offering, attempting or purporting to do the act; or
      • aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act.
    10. a list of rights is not an exhaustive list of rights;
    11. an expression of ownership includes the legal or beneficial ownership;
    12. a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing;
    13. a reference to ‘loss’ includes any loss, damage, cost, expense or liability, including legal costs;
    14. a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and
    15. a reference to a provision, clause or paragraph is a reference to a provision, clause or paragraph of this agreement.

9.5 Variation

  1. FOS may vary this agreement at any time by amending the version of this document (ie this agreement) accessible on the Website.
  2. You acknowledge that, by FOS’ amending the version of this document accessible on the Website, FOS gives you notice of that variation.
  3. You cannot vary this agreement.
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