Folktale End-User Licence Agreement (“EULA”)
Application of this EULA:
This EULA governs the licence of the Folktale engagement and mobile storytelling software-as-a-service platform (“Folktale Platform”) by Folktale Global Pty Ltd (ACN 611 299 631) (“Folktale”) to you, an end-user of the Folktale Platform (“End User”) and your use of the Folktale Platform.
This EULA governs all use by an End User of the Folktale Platform. By accessing or using the Folktale Platform, each End User:
acknowledges, expressly accepts and agrees to the terms of this EULA (including the Acceptable Use Policy in this EULA); and
EULA Terms and Conditions:
In addition to the definitions above, the following definitions apply in this EULA:
GDPR means European Union Regulation 2016/679, also known as the General Data Protection Regulation, or any successor legislation.
Intellectual Property means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
Laws means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
Personal Information means personal information or personal data as defined in the privacy or data protection legislation applicable to the End User or other relevant individual whose information is collected, stored, used or transferred in the course of this EULA and, without limitation, means “personal data” as defined in the GDPR for End Users who reside in the EEA and “personal information” as defined in the Privacy Act 1988 (Cth) for End Users who reside in Australia.
Sensitive Personal Information means any (i) special categories of personal data enumerated in Article 9(1) of the GDPR; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s licence numbers or other government identification numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
Term means the term that this EULA remains in effect in relation to an End User, which is subject to the termination provisions in Section 3 below.
Grant of Licence in the Folktale Platform
Subject to the terms and conditions of this EULA, Folktale hereby grants End User a limited, non-exclusive, non-transferable, non-sublicensable license to use the Folktale Platform during the Term.
Termination of Licence
Without prejudice to any other rights Folktale may have, Folktale may terminate the licence in Section 2 in relation to an End User if that End User fails to comply with the terms and conditions of this EULA. In such event, the Term comes to an end and the relevant End User must immediately cease using the Folktale Platform..
Modifications to the Folktale Platform
Folktale may modify or change the Folktale Platform at its sole discretion at any time. Folktale shall have no liability of any kind to End User flowing from any adverse effects resulting from such changes to the Folktale Platform.
End Users’ responsibilities
End User is responsible for (and must have sufficient authority to take) all actions that are performed on or through its Folktale account, including any procurement or use of third party products or services (and associated disclosure of data) in connection with the Folktale Platform.
End Users must keep their username and password for the Folktale Platform strictly confidential and must not share such information with any unauthorised person. End Users are responsible for any and all actions taken using their accounts and passwords. End Users must immediately notify Folktale of any unauthorised use of which they become aware.
Acceptable Use Policy
End Users may not, and may not allow any third-party, to use the Folktale Platform to display, store, process or transmit, or permit use of Folktale Platform to display, store, process or transmit:
material that infringes or misappropriates a third party's Intellectual Property rights;
hate-related or violent material;
material advocating discrimination against individuals or groups;
obscene or otherwise objectionable material;
material related to illegal drugs or paraphernalia;
Sensitive Personal Information;
malicious code, such as viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs;
material advocating or advancing criminal hacking or phishing; or
material that violates, encourages or furthers conduct that would violate any applicable Laws.
End Users may not, and may not allow any third-party, to use the Folktale Platform to:
data mine or harvest any web property to find email addresses or other user account information;
send unauthorised mail via open, third-party servers;
sell to, exchange with, share with or distribute to a third party any Personal Information;
send, upload, distribute or disseminate, or offer to do the same, with respect to unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, excessively profane, hateful, violent, or otherwise objectionable material, or promote, support or facilitate unlawful, hateful, discriminatory, or violent causes;
distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
generate or facilitate unsolicited commercial email (spam) or generate or facilitate SMS, MMS, or other text messages or push notifications in violation of applicable anti- spam, telemarketing or telephone consumer protection laws or regulations;
transmit material that may be harmful to minors;
illegally transmit another's Intellectual Property without such owner's or licensor's permission;
impersonate another person, entity or Folktale or otherwise misrepresent themselves or the source of any communication;
violate the privacy rights of others;
promote, facilitate or encourage illegal activity;
interfere with other subscribers or end users' use of the Folktale Platform; or
use the Folktale Platform in any manner that would damage the reputation of Folktale.
Specifically in relation to the Folktale Platform, without limiting anything in sections 6.1(a) or (b) above, End Users may not:
reproduce, modify, adapt or create derivative works of the Folktale Platform;
rent, lease, distribute, sell, sub-license, transfer or provide access to the Folktale Platform to a third party;
use the Folktale Platform for the benefit of any third party;
incorporate the Folktale Platform (or any part of it) into a product or service provided to a third party;
interfere with or otherwise circumvent mechanisms in the Folktale Platform intended to limit use;
reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public application programming interfaces (APIs) to the Folktale Platform, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);
remove or obscure any proprietary or other notices contained in the Folktale Platform;
use the Folktale Platform with the purpose of competing with Folktale or in such a way that has the effect of competing with Folktale, including for competitive analysis or to build competitive products;
publicly disseminate information regarding the performance of the Folktale Platform;
authorise or display any form of advertising that uses Account Data; or
encourage or assist any third party to do any of the foregoing.
End User Content
For the purpose of enabling Folktale to provide the Folktale Platform and associated services:
(a) each End User grants Folktale a licence of all rights of Intellectual Property they have in the content that they upload to the Folktale Platform; and.
(b) each End User waives any Moral Rights they may have in the content that they upload to the Folktale Platform (“Moral Rights” for this purpose means rights of integrity of authorship, rights of attribution of authorship of a work and rights not to have authorship of a work falsely attributed).
Intellectual Property Complaints
It is Folktale’s policy to respond expeditiously to valid notices of claimed Intellectual Property infringement. Folktale reserves its rights to remove allegedly infringing material or terminate the access rights of End Users who Folktale suspects to be repeatedly or blatantly infringing Intellectual Property rights.
(a) Folktale Platform will only collect End Users’ Personal Information to the extent that End Users submit such information. The Folktale Platform will not automatically access, collect, store or transmit any Personal Information residing in any End User’s computer environment as part of its functionality.
(b) Data collection by the Folktale Platform is strictly limited to only what is needed to deliver the Folktale Platform and associated services, as further described . Third parties are forbidden from using shared data for any profiling, targeting, or other behaviour not directly connected to providing the Folktale Platform. Folktale may use the information transmitted by the Folktale Platform for activities such as determining usage for billing and license compliance and helping improve upon and market its product and service offerings. Folktale may retain this information in perpetuity.
(b) In relation to any Personal Information that End Users submit for the purpose of use of the Folktale Platform, Folktale may also de-identify such Personal Information and aggregate with other de-identified Information for the purpose of producing new Folktale products for internal use or commercialisation.
(a) The word “Folktale” and any other product or service names, slogans, graphics, logos, page headers, button icons and scripts contained in or used with the Folktale Platform, except as otherwise noted, are trademarks or trade dress of Folktale. Folktale’s trademarks and trade dress may not be used in connection with any product or service that is not Folktale’s, in any manner that is likely to cause confusion, or in any manner that disparages or seeks to discredit Folktale.
(b) Reference to any products, services, processes or other information, by trade name, trademarks, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Folktale.
The Folktale Platform is not intended for, and should not be used by, anyone under the age of 16. If you as an End User are under 16 years old you must immediately cease using the Folktale Platform and this EULA will terminate.
Control over the Folktale Platform
Folktale may limit, suspend or terminate an End User’s use of or access to the Folktale Platform if, in Folktale’s reasonable discretion, the End User breaches or may breach the Acceptable Use provisions in section 6 above, any other material provision of this EULA or the End User is otherwise adversely affecting the performance or operation of the Folktale Platform.
Folktale does not warrant that the Folktale Platform will operate without error or interruption. The Folktale Platform is not designed, intended or warranted for use in hazardous environments requiring fail-safe controls, including without limitation, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support equipment, emergency services or weapons systems.
Other than the warranty in section 13(a), Folktale provides no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them (such as the statutory warranties available to Australian consumers addressed in section 14).
Folktale warrants that the Folktale Platform will, for one year from the date End User first used the Folktale Platform, perform substantially as described in the applicable user documentation.
The limited warranty in section 13(a) is subject to the following limitations:
any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
this limited warranty does not cover problems caused by accident, abuse or use of the Folktale Platform in a manner inconsistent with this EULA or our published documentation or guidance, or resulting from events beyond our reasonable control; and
this limited warranty does not apply to problems caused by a failure to meet minimum system requirements.
For End Users who are ‘consumers’ within the meaning of the 'Australian Consumer Law' under the Australian Competition and Consumer Act 2010 then despite any other provision of this EULA the following shall apply:
The Australian Consumer Law provides statutory guarantees that cannot be excluded under this EULA, including that goods will be of acceptable quality and services will be supplied with due care and skill. If Folktale fails to comply with any such statutory consumer guarantee, Folktale's liability is limited to the following:
in connection with the provision of warranty and support services for the Folktale Platform, to any one or more of the following (at Folktale's discretion): (i) the supply of the services again; or (ii) the payment of the costs of having the services supplied again; and
in connection with the provision of the software, to any one or more of the following (at Folktale's discretion): (i) the replacement of the software or the supply of equivalent software; (ii) the repair of the software; (iii) the payment of the costs of replacing the software or of acquiring equivalent software; or (iv) the payment of the costs of having the software repaired; and
otherwise, is excluded to the maximum extent permitted by the Australian Consumer Law.
Nothing in this EULA excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by the Australian Consumer Law which cannot be lawfully excluded or limited; and
The benefits provided by the warranties in this EULA are in addition to other rights and remedies available under a law in relation to the goods or services to which the warranty relates.
The Folktale Platform may be capable of retaining user-generated data. Folktale hereby provides End Users with notice that if Folktale repairs, upgrades or changes the Folktale Platform, that repair, upgrade or change may result in the loss of that data. To the fullest extent permitted by the Australian Consumer Law, the limitations and exclusions of Folktale's liability in this EULA apply in respect of any such loss of data.
Limitation of liability
Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, failure of security mechanisms, business interruption, or loss or inaccuracy of data or business information, howsoever caused even through negligence and even if the party knew or ought to have known they were possible or reasonably foreseeable.
If an End User believes that they may be entitled to any warranty or claim under this EULA or any of the above remedies, please email firstname.lastname@example.org.
Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, volcanoes, global pandemics (including viruses), flood, severe storms, strike, embargo, labour disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of the Folktale Platform and associated services).
This EULA is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.
Applicable Law and Venue
This EULA is governed by the laws of the State of Queensland in Australia, without regard to its conflict of laws principles, except that (a) if the End User is a U.S. Government entity, this EULA is governed by the laws of the United States, and (b) if you are a state or local government entity in the United States, this EULA is governed by the laws of that state.
Any action to enforce this EULA must be brought in the State of Queensland in Australia.
This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights.
The following provisions will survive any termination or expiration of this EULA: Sections 3 (Termination), 14 (Warranties), 15 (Australian Consumers), 16 (Limitation of Liability), 17 (Notices), 19 (Entire Agreement), 20 (Applicable Law and Venue) and this Section 21 (Survival).
Last modified March 2023