Terms and Conditions

These terms and conditions govern your use of the Smiddy Fun Run (SFR) Website (defined below) and form part of Our Agreement (defined below) ("Terms and Conditions"). Our Agreement deals with what you must do, what we agree to do, how we deal with each other's "content" and "intellectual property" what you must not do, our liability, your liability, privacy obligations and other matters.

We provide:

You may provide content ("Content"). By "Content" we mean the content and information you provide to SFR or post on or make available to the SFR Website, including, without limitation, information about you and the actions you take, any photos, video, or text or other forms of content.

Information about us

1. We are Clear Heads International Ltd (CHIL), an Australian public company, limited by guarantee (ACN 160 945 184) and have our registered office at 705, 6A Glen Street Milsons Point, New South Wales 2065 Australia. We provide the SFR Website on behalf of The PA Research Foundation.

What is "Our Agreement" and who does it cover?

2. Our Agreement comprises:

(a) These Terms and Conditions;

(b) The SFR Privacy and Cookies Policy (available here: https://www.smiddyfunrun.org.au/privacy);

(c) Policies, notices and disclaimers displayed elsewhere on the SFR Website; and

(d) The Payment Terms (available here: https://www.smiddyfunrun.org.au/payment-terms).

The terms of Our Agreement apply to every page on the SFR Website and the SFR Website is made available to you subject to the terms of Our Agreement. By using the SFR Website you are deemed to have accepted the terms of Our Agreement.

3. Our Agreement governs our relationship with:

(a) Registered participants of SFR (we call you "Participants"); and

(b) People who make donations ("Donors") through the SFR Website ("Donations"), where offered, or otherwise access or use the SFR Website (together, we call you "Website Users").

Our Agreement also governs the relationship between Participants and the companies and brands that sponsor SFR (we call them "Partners").

4. If you are a Participant you are deemed to agree to Our Agreement at the time you create an account with us.

5. If you are not a Participant but you make a donation, are a Donor or you are otherwise a Website User, you agree to Our Agreement at the time you access and use the SFR Website (including to make a Donation. You enter into a separate agreement each time this occurs.

6. It is your responsibility to ensure that you understand and agree to the terms of Our Agreement. You must read these Terms and Conditions carefully. Some of the terms used in Our Agreement are defined throughout these Terms and Conditions or at the end.

7. If you are a Participant, you must read and agree to the terms of Our Agreement before you tick the accept box. By ticking the accept box you are deemed to have read, understood and agreed to the terms of Our Agreement.

8. If you are not a Participant you must read and agree to the terms of Our Agreement before you proceed at any time to access and use the SFR Website (including to make a Donation). By making a Donation you are deemed to have read, understood and agreed to the terms of Our Agreement.

9. If you do not agree to any term or condition of Our Agreement (including any disclaimer displayed elsewhere or the Payment Terms) you must not continue to:

(a) Have an account as a Participant;

(b) Make any Donation;

(d) Otherwise access or use SFR or the SFR Website.

10. If you have any questions or wish to clarify any term in Our Agreement, please contact us at [email protected]

How can Our Agreement change?

11. We reserve the right to amend or change the terms of Our Agreement at any time by posting any changes on the SFR Website. You should regularly check the SFR Website for this purpose.

12. Any new or amended terms will be effective immediately when they are posted, and by continuing to use the SFR Website you agree to be bound by the most current version of the terms of Our Agreement.

13. If you disagree with any of these changes, you must immediately discontinue being a Participant, making any Donation, or otherwise accessing and using the SFR Website. By continuing to do any of the foregoing you are deemed to have agreed to the new or amended terms of Our Agreement.

Accessing the SFR Website

14. The SFR Website is made available free of charge.

15. We do not guarantee that the SFR Website, or any content on it, will always be available or uninterrupted. Access to the SFR Website is permitted on a temporary basis and we may suspend, withdraw, discontinue or change all or any part of the SFR Website without notice. Without limiting these Terms and Conditions, we will not be liable to you if, for any reason, the SFR Website is unavailable at any time or for any period.

16. You are responsible for making all arrangements necessary for you to have access to the SFR Website.

Participants must have accounts

17. To be a Participant you must open an account with us. In creating your account you must provide us with, amongst other things, a current e-mail address, your residential postcode, and your full name. You may also choose to provide us with your telephone number and full residential address and other information. Any information you provide to us will be handled in accordance with our Privacy Policy (available here: https://www.smiddyfunrun.org.au/privacy). If you are under 18 year of age, you will need parental consent to sign up to participate in Smiddy Fun Run.

18. It is your responsibility to act responsibly as a Participant.

19. You must keep your account information up to date with us. We require this to be able to identify you, to contact you as permitted under Our Agreement and for security purposes.

20. If you choose to use a workplace email address for your account or to access the SFR Website, you are responsible for ensuring that such use complies with any rules, policies or protocols which apply to the use of the Internet in your workplace.

21. In creating an account you must choose a password that is a minimum (5) characters long. You must keep your password secure and must not reveal your password to anyone else.

22. We have the right to disable any account information or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion, you have failed to comply with any of terms of Our Agreement.

23. If you allow someone else to use your account, you are liable under Our Agreement for any act or omission by them which may breach Our Agreement.

24. If you know or suspect that someone else has obtained your account information or password without your consent you must notify us promptly at [email protected]

25. Where legally required, we will notify you and any relevant authorities should we be aware of or have a reasonable basis to suspect that the security of your account or any information about you held by us has been compromised or if you may be seriously affected by a breach by another person of Our Agreement with them.

Your privacy

26. The privacy of all Participants and Website Users is very important to us. We will only collect, use, store and disclose your personal information in accordance with our Privacy Policy (available here: https://www.smiddyfunrun.org.au/privacy). You should read the Privacy and Cookies Policy and make informed decisions about your personal information.

27. You acknowledge and agree that all content and information you share or post on or make available to the SFR Website will be publicly viewable.

Communications with you

28. If you are a Participant, you agree that we may contact you using your account details in relation to your participation with SFR. We will only communicate with you for marketing purposes, news about SFR or news about beneficiaries if you opt-in to such communications.

29. If you make a Donation you agree that we may contact you using your contact details which you provide at the time of making a Donation in relation to your donation. We may also contact you in relation to SFR but we will only communicate with you for marketing purposes, news about SFR or news about beneficiaries if you opt-in to such communications.

30. You agree that our main form of communication with you will be by email or through the SFR Website. If you provide us with a telephone number, you agree that we may contact you through that number also.

31. You may opt-in to certain communications from us or third parties in relation to marketing, news about SFR, news about beneficiaries, or other information available from time to time. If you do so, we or third parties may communicate with you in accordance with your opt-in unless you notify us or them otherwise.

Payments you might make

32. If you make any Donation you agree to our Payment Terms (available here: www.smiddyfunrun.org.au/payment-terms) at the time of doing so.

33. You must only make Donations in accordance with Our Agreement (including the Payment Terms).

You should read this if you are outside Australia

34. SFR and the SFR Website are designed for participation of people who are resident or living in Australia.

35. We do not represent that content available on or through the SFR Website is appropriate or available in other locations. Accessing and using the SFR Website from countries where the content is or could be illegal is strictly prohibited.

36. If you are a Participant or access or use the SFR Website from a location outside Australia, to the maximum extent permitted under applicable law you do so at your own risk.

About you sharing your content and intellectual property

37. Whenever you make use of a feature that allows you to upload content to the SFR Website, or to make contact with other users of the SFR Website, you must comply with the acceptable use standards and policies as set out in these Terms and Conditions.

38. We understand the importance to you of the content you post on or make available to the SFR Website ("Your Content"). Under Our Agreement, any content uploaded by you will be considered non-confidential and non-proprietary but you retain ownership rights to Your Content.

39. In order for us to make SFR available in our desired format and structure and for us to provide the functions we wish on the SFR Website, we must be able to use certain types of Your Content in certain ways. Therefore, you give us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, reproduce, distribute, create derivative works from, display and perform Your Content in order to:

(a) Enable you to share Your Content on the SFR Website;

(b) Share Your Content on the SFR Website and through emails or SMS with other Participants or Donors;

(c) Enable you to access and use the SFR Website;

(d) Make and distribute marketing material in relation to SFR which includes Your Content at any time (including after Our Agreement is terminated);

(e) Back up the data on the SFR Website;

(f) Ensure your compliance with Our Agreement; and

(g) Comply with any obligation we have under in relation to SFR, the SFR Website and/or Your Content.

40. We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our site constitutes a violation of their intellectual property rights, or of their right to privacy.

41. You warrant and represent that you have the authority and ability to grant us the license referred to above and to the fullest extent legally permitted you irrevocably waive any moral rights (or similar rights) you have in Your Content. You also represent and warrant that Your Content is lawful and is not offensive, obscene or defamatory and does not infringe the legal rights of any other person.

42. You agree that Your Content is free from viruses or other malicious material and you must not misuse the SFR Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the SFR Website, the server on which the SFR Website is stored or any server, computer or database connected to the SFR Website. You must not attack the SFR Website via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the SFR Website will cease immediately.

43. We will not be responsible, or liable to any third party, for the content or accuracy of any content posted by you or any other user of the SFR Website. Any views or opinions expressed by users of the SFR Website do not represent the views, opinions or values of SFR.

44. We have the right to remove any posting you make on our site if, in our opinion, your post does not comply with the content standards set out in Our Agreement

45. When you remove Your Content it may persist in backup copies for a reasonable period of time but will not be available to others.

About us sharing our content and intellectual property with you

46. We have worked very hard to develop and build SFR and the SFR Website so it can be available and useable by you. You acknowledge and agree that, as between you and us:

(a) We are the owner of copyright and all other intellectual property in any content available or provided through SFR and the SFR Website other than Your Content; and

(b) The SFR Website (and any modifications, adaptations, updates or new versions) is and embodies customised architecture, guided forms, processes, methods, activities, strategies, trade secrets, know how, and techniques and other ideas which are our intellectual property and must only be used by you in accordance with Our Agreement.

47. We give you the following licence in relation to the SFR Website but you cannot access, use or exploit the SFR Website outside this licence. While you have the right to access and use the SFR Website, we authorise and license you on a revocable, non-exclusive, non-transferable basis to use the SFR Website in accordance with Our Agreement. You are not permitted and do not have a licence to reproduce, modify or adapt any software on the SFR Website or material appearing on the SFR Website. You are not authorised and have no licence to use or reproduce our registered or unregistered trademarks unless we provide you with express permission in writing to do so. You must not use any part of the content on the SFR Website for commercial purposes without obtaining a licence to do so from us or our licensors.

48. You may print off one copy, any may download extracts, of some content from the SFR Website, including, posters, donation forms and other images for personal use and to help raise awareness of, and donations for, SFR.

49. If you use of exploit any part of the SFR Website in breach of the above licence, your right to use the SFR Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

About other people's content and intellectual property

50. You must ensure you have all intellectual property rights and any other rights required to the content to enable you to post on or make available such content to the SFR Website.

51. You must not use or exploit other people's content provided through SFR or posted to or made available on the SFR Website unless they give you express permission to do so. You will not post content about other people on the SFR website unless they give you express permission to do so.

Things you must do (to keep SFR and the SFR Website appropriate and working properly)

52. We want to keep all content and information shared through SFR and on the SFR Website appropriate and in compliance with relevant laws and legal obligations and we need to protect the rights and safety of all Participants and Website Users. We also need to protect the security and integrity of SFR and the SFR Website. We need your help in order to do this. So, you agree that:

(a) If you are a Participant, make any Donations you will comply with all applicable laws in doing so;

(b) You will comply with all applicable laws in relation to your access to and use of the SFR Website (including but not limited to duties and obligations of confidentiality and privacy);

(c) You will not send or otherwise post unauthorised or unsolicited commercial communications to users (such as spam) through SFR or the SFR Website;

(d) You will not directly promote or advertise any goods or services through SFR or the SFR Website without our consent; you will not use SFR or the SFR Website to do anything unlawful, misleading, malicious, or discriminatory;

(e) You will not use SFR or the SFR Website in a way, or post to or make available via SFR or the SFR Website any material, which interferes with other users or defames, intimidates, harasses, threatens, menaces or offends any person or which inhibits any other user from using or enjoying SFR or the SFR Website or which is indecent, violent, inflammatory or pornographic material or material in any way offensive that could give rise to civil or criminal proceedings;

(f) You will not solicit or collect other people’s information through SFR or the SFR Website, or otherwise access the SFR Website using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission;

(g) You will not tamper with, hinder the operation of, or make unauthorised modifications to the SFR Website;

(h) You will not knowingly transmit any virus or other disabling feature to or via SFR or the SFR Website;

(i) You will not frame or mirror or link to any part of the SFR Website without our prior written consent;

(j) You will not post content or take any action on the SFR Website that infringes someone else's rights;

(k) If you collect information from others through SFR or the SFR Website you will obtain their consent, make it clear you (and not us) are the one collecting their information, and only use or disclose the information in accordance with all relevant laws and the Privacy and Cookies Policy https://www.smiddyfunrun.org.au/privacy. You will not use information collected from others through SFR or the SFR website for any purpose other than those directly related to participation or Donations to the SFR challenge. You agree to direct Donors who you identify to the SFR website to make their donations, and in circumstances where you collect Donations directly, to promptly remit such Donations to SFR by making a Donation in the amount so raised through the SFR website. SFR will not be liable to parties who make donations other than through a Donation using the SFR website for receipt or return, or any claims whatsoever relating to such donations.

(l) You will not use the SFR Website in any way that is fraudulent or has any unlawful or fraudulent purpose or effect or for the purpose of harming or attempting to harm minors in any way;

(m) You will not attempt any of the above acts or permit another person to do any of the above acts.

53. You are solely responsible for Your Content that you provide to or make available on the SFR Website.

54. You must immediately notify us if you become aware or have a reason to believe any other Participant or Website User is doing any of the acts in section 52 above.

Specific terms for Participants

55. We need your help to protect your security as a Participant. You therefore agree to do the following:

(a) You will not provide any false personal information to SFR or on the SFR Website, or create an account for anyone other than yourself without permission;

(b) You will notify us immediately if the security of your account has been compromised or if your identification details for your account become known by a third party; and

(c) You will not share your password, let anyone else access your account, or do anything else that might jeopardise the security of your account.

About Advertisements on the SFR Website

56. Our goal is to provide third party advertising and links to beneficiaries or others that may be valuable or interesting to you. The SFR Website may contain links to websites owned, operated or hosted by third parties which are not under our control (Linked Websites). Links to Linked Websites are provided for convenience only and may not remain current or be maintained.

57. You may choose to access such websites or resources at your sole discretion. Links to Linked Websites, and the advertisement of any third parties, should not be construed as any endorsement, approval, recommendation, or preference by SFR of them or their goods/services, nor does it imply that there is any association between us and the operators of these websites. We do not make any representation or warranty in respect of these websites or resources (including as to their accuracy, completeness or security). To the extent permitted by law, we take no responsibility and have no liability in relation to them and your use or reliance on these is at your own risk.

58. We may receive sponsorship, fees and/or commissions from third parties in connection with Linked Websites or third party advertising. You acknowledge and consent to us receiving the sponsorship, fees and/or commissions.

What we can do if you do not comply with Our Agreement

59. We take your obligations very seriously, so if we believe you have violated Our Agreement, or otherwise create possible legal exposure for us, we can (without limiting any other section of these Terms and Conditions):

(a) Stop providing the SFR Website to you (including preventing you from making a Donation);

(b) Remove (including destroy) any of Your Content;

(c) Suspend, disable or terminate your account with SFR (if you are a Participant); and/or

(d) Terminate Our Agreement.

We can undertake these above acts immediately although we will endeavour to notify you as soon as possible.

60. If, after receiving our notice, you believe we undertook any acts under clause 59 by mistake, we will take reasonably efforts to give you an opportunity to provide us with an explanation or reason as to why and we will consider your explanation or reason.

Other ways for termination of Our Agreement

61. We may terminate Our Agreement, your account with SFR (if you are a Participant) or end your access to or use of the SFR Website (including preventing you from making a Donation) at any time without any reason on reasonable notice to you.

62. You may terminate Our Agreement and, if you are a Participant, your account with SFR at any time without any reason by notice to us. If you have made a Donation, your ability to terminate such donation is subject to the Payment Terms.

63. Sections 21, 24, 27, 28, 30, 31, 35, 39 to 48, 57, 58 and 64 to 88 still apply after termination of your account and/or Our Agreement:

Disclaimers

You must read these disclaimers on safety, security and availability carefully.

64. We use 128 bit SSL encryption technologies and use reasonable efforts to protect the privacy of the information you provide to us. To the extent we hold such information, we encrypt all email addresses, passwords and other contact details of the Participants or people who make Donations

65. We try to keep the SFR Website available, bug-free, and safe and secure, but we cannot guarantee that the SFR Website will be available, free of bugs, safe or secure and you use it at your own risk.

66. The content on the SFR Website is provided for general information only and is not intended to amount to any advice on which you should rely. You must obtain professional or specialist advice before taking or refraining from, any action on the basis of the content of the SFR Website.

67. Although we make reasonable efforts to update the information on the SFR Website, we make no representations, warranties or guarantees, whether express or implied, that the content on the SFR Website is accurate, complete or up-to-date.

68. We may not at all times control or monitor the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability any content, information or communications by Participants or Website Users via SFR or the SFR Website. You use and rely on any such content, information or communications at your own risk

69. You must provide at your own expense, all hardware, software or any other equipment necessary to access the Internet or otherwise enable you to be a part of SFR as a Participant or access or use the SFR Website. The ability for you to be a part of SFR as a Participant or access or use the SFR Website will be dependent on your hardware, software and network infrastructure as well as shared infrastructure of the Internet and our security processes. You should use your own virus protection software.

70. The Internet is sometimes unreliable and is a difficult medium to secure. We cannot guarantee the security of SFR or the SFR Website or the systems (including the Internet and your hardware and software) used to access the SFR Website, or any information that passes through such systems. However, we do agree to use reasonable endeavours to do ensure the security of SFR or the SFR Website.

71. To the extent permitted by law, we are not responsible for any unauthorised access to your personal information or loss of or corruption of data caused by any third party or via any third party system.

72. We may need from time to time to make the SFR Website unavailable and/or withdraw or limit access to the SFR Website in order to effect any changes to, or remedy any faults in, the SFR Website.

We limit our liability to you

73. You acknowledge that we do not charge any fee for you to use SFR or the SFR Website. Accordingly, our liability in connection with any matter arising from or connected to the use of SFR or the SFR Website is substantially excluded or limited. The below section sets out our entire liability (including any liability for the acts or omissions of our officers, employees, consultants, authorised agents) to you in connection with the SFR Website and for any breach of our Agreement, breach of statute, representation, statement or tortious act (including negligence) or omission arising under or in connection with the SFR Website and our Agreement and your attention is particularly drawn to the following provisions:

74. In so far not expressly referred to under these Terms and Conditions we are providing SFR and the SFR Website "as is" without any express or implied warranties or conditions including, but not limited to, implied warranties and conditions with respect to availability, merchantability, fitness for a particular purpose, and non-infringement of third party rights in relation to the SFR Website and any content, functionality, services offered, supplied or made available through or in connection with it (whether or not by us or a third party). To the extent permitted by applicable law, we exclude all warranties and conditions that may otherwise be implied into Our Agreement.

75. We comply with our security obligations under applicable data protection law but cannot 100% guarantee that SFR or the SFR Website will be safe or secure.

76. You acknowledge that CHIL is not a registered charity and does not issue charitable donation tax receipts for income tax purposes. Donation receipts will be issued by PA Research Foundation.

77. We are not responsible for the actions or content of third parties, and to the fullest extent legally permitted you release us, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against any such third parties. This includes that we provide no warranties and have no liability in connection with:

(a) Your relationship with third parties regarding your participation or donations in relation to SFR, including your relationship as a donor to any charitable organization with which the SFR challenge is affiliated as a recipient of donations made by you;

(b) Any loss or unauthorised access or use of Your Content, your information or account by a third party;

(c) Donations not made directly by you through the SFR web-site, including donations you remit to a participant; or

(d) The use or misuse of SFR and the SFR Website by a third party.

78. To the extent permitted by applicable law, we are not responsible for and have no liability in relation to the following (whether direct, indirect, consequential, incidental, special or other types of losses or damages):

(a) Loss caused by factors which could reasonably be considered to be outside our control such as faults in third party equipment; or

(b) Loss caused by use of, or inability to use the SFR Website or use of or reliance on any content displayed on the SFR Website;

(c) Death or injury, except that our liability to you for death or injury resulting from our negligence shall not be limited or excluded;

(d) Any loss or damage caused by a virus, distributed denial of service attack or other technologically harmful material that may affect your computer equipment, programs, data or other proprietary material due to your use of the SFR Website; or

(e) Loss of data, loss of profits, loss of revenue, loss of opportunity, loss of goodwill, special, incidental or consequential loss, whether suffered by you or any other party and however so arising, including claims based in contract (including for repudiation), tort (including negligence), common law, equity, statute or otherwise whether in relation to your access to and use of the SFR Website, your participation in SFR or otherwise.

79. We are not responsible for and have no liability in relation to any loss to the extent that it is caused by you, for example, through your negligence or breach of contract.

80. If, subject to what is set out in this “We limit our liability to you” section, we are liable, you agree that we are only liable up to the sum of AUD 100.

81. You must take reasonable steps to minimize the extent of the loss you may suffer for which we may be liable. You must notify us in writing of your loss as soon as is reasonably possible.

82. NOTHING IN OUR AGREEMENT IS INTENDED TO LIMIT OR EXCLUDE YOUR STATUTORY RIGHTS AS A CONSUMER OR ANY LEGAL RIGHTS AND REMEDIES THAT CANNOT BE SO LIMITED OR EXCLUDED UNDER APPLICABLE LAW.

Your liability to us

83. You must indemnify (and keep indemnified), defend and hold us, our officers, employees, and agents harmless from any and all third party claims, liability, losses, damages and/or costs (including, but not limited to, legal fees) arising from:

(a) Your breach of Our Agreement;

(b) Your Content;

(c) Your infringement, of any intellectual property or other right of any person (including by Your Content);

(d) Your acts or omission as a Participant; or

(e) Your access to and use of the SFR Website.

Other contract terms

84. Our Agreement is governed by Australian law (the laws of NSW and the laws of Australia that apply in NSW, and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of NSW and Australia for the purpose of hearing and determining any dispute arising out of or in any way relating to Our Agreement or its formation and for the purpose of enforcement of any judgement.

85. Our Agreement makes up the entire agreement between Participants and Website Users and us and supersedes any prior agreements.

86. If any portion of Our Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.

87. If we delay or fail to enforce any of Our Agreement, it will not be considered a waiver.

88. You will not transfer any of your rights or obligations under Our Agreement to anyone else without our consent.

89. All of our rights and obligations under Our Agreement are freely assignable by us.

Last modified on 24th August 2018