Am I Flying Yet? Terms & Conditions

Thank you for choosing the ‘Am I Flying Yet?’ App.

This App is owned and operated by Future By Design Australia Pty Ltd ACN 640 185 119 as trustee for the Future By Design Australia Trust (Future by Design Australia, we, us).

Please read these terms and conditions (Terms) carefully, because they govern your use of the App and form a legally binding agreement between you and Future by Design Australia.

By clicking “I accept” when creating an account on the App, you acknowledge that you have read and understood these Terms and agree to be legally bound by them. If you do not agree with these Terms, you must not access or use the App.

About the App

  1. The App is intended to be used as a tool to help users identify their goals, needs and support requirements and generate draft plans for their NDIS funding. The draft plans generated using the App can be exported to the NDIS planner, to assist users in negotiating their NDIS plan and budget.
  2. Future by Design Australia does not give you any assurances that the App, or any information supplied as part of the App, will be suitable for your purposes or that it will be error-free. All information, user guides and other materials we provide through the App are of a general nature and should not be considered as specific advice or relied upon in place of professional advice.
  3. By accessing, registering for, or otherwise using the App, you will be taken to acknowledge and agree that the App is provided on an ‘as is’ and ‘as available’ basis.

Creating an account

  1. In order to use the App, you will need to create an account and purchase an annual subscription, by completing the registration process on the App. The account registration process will be complete once you have provided all requested information and verified your email address.
  2. You represent and warrant to us that all information you submit to us via the App, including your account registration information, is true and submitted in good faith.
  3. You agree to not disclose your account login details (email and password) to any third parties, other than the family, friends or support workers that may assist you in using the App. If you allow another person to use the App using your login details, you will be responsible for ensuring that person complies with these Terms and you agree to accept responsibility for all activities that occur using your account login details.

Subscriptions fees and payment

  1. Once you have completed the account registration process, we will provide you with access to use the App and issue you with an invoice for the applicable annual subscription fee.
  2. The applicable subscription fees must be paid within 14 days of the date of our invoice. If we have not received payment of the applicable subscription fee within 14 days, your access to the App will be temporarily suspended until payment is received.
  3. You may notify us that you wish to cancel your subscription at any time by emailing us at info@amiflyingyet.com.au. The cancellation will take effect at the end of your current subscription period.
  4. If you do not cancel your subscription, your annual subscription will automatically renew for a further 12 months upon the last day of your current subscription period. We will issue you with an invoice for each subscription period in advance.
  5. The applicable subscription fees will be notified to you at the time of creating an account. We may change our subscription fees from time to time by providing you with at least 30 days prior written notice. Any such change will take effect from the start of your next subscription period. If you do not wish to continue with your subscription because of such a change to the fees, you are entitled to cancel your subscription prior to the change taking effect.
  6. Subscription fees are not refundable for change of mind.
  7. All prices quoted on the App are in Australian dollars and are inclusive of GST, unless otherwise expressly provided.

Our relationship with you

  1. For the duration of the subscription period you have purchased, we will:
    • host and maintain the App; and
    • provide technical support by email (info@amiflyingyet.com.au).
  2. You must ensure that you only use the App in accordance with these Terms and only for lawful purposes.

Intellectual Property Rights

  1. the App contains user guides, reports, branding (including registered and unregistered trade marks), images, information, videos and other materials published or otherwise made available by Future by Design Australia (Future by Design Australia IP). The Future by Design Australia IP is protected by intellectual property laws and must not be used or copied by you except as contemplated by these Terms, or otherwise with our prior written consent.
  2. Future by Design Australia grants you a personal, non-transferable (non-sub-licensable) and non-exclusive licence to access and use the Future by Design Australia IP while you have a current subscription in accordance with these Terms.

User Data

  1. All information you input into the App (User Data) remains owned by you. You grant us a perpetual, irrevocable, transferable, non-exclusive, royalty-free licence (including the right to grant sublicenses) to use, modify, reproduce, host, store, transmit and display your User Data for the purposes of:
    • performing our obligations, or exercising our rights, under these Terms and enabling your access to, and use of, the App; and
    • allowing us to improve the App and our associated services, and to develop new products and services.
  2. It is your responsibility to maintain backups of your User Data. We may delete your User Data if your subscription is terminated or expiries.

Prohibited conduct

You agree that the App and the associated Future by Design Australia IP will be used solely for the purposes and functions contemplated by these Terms and you will refrain from using the App for any other purpose (Prohibited Conduct). Prohibited Conduct includes:

  • tampering with or attempting to access user accounts of other users;
  • attempting to gather and use information available from the App to transmit any unsolicited advertising;
  • using, allowing the use of, or otherwise providing user credentials in a manner that allows for any use of data mining, robots, web scraping, or similar data gathering and extraction tools or any downloading or copying of account information for the benefit of another party;
  • reproducing, duplicating, broadcasting, copying, selling, trading, reselling, redistributing, or exploiting, directly or indirectly, for any commercial purposes any portion of the App or the Future by Design Australia IP without Future by Design Australia’ prior written consent; and
  • the knowing transmission of any viruses, Trojan horses, trap doors, back doors, worms, time bombs or other malicious code or computer programming routines.

You shall be strictly liable to Future by Design Australia for, and shall indemnify, defend and hold Future by Design Australia harmless from and against any losses, claims or other damages it may incur as a result of Prohibited Conduct by you or any person you allow to use the App using your login details.

General liability

  1. Except to the extent prohibited by law, we will not be liable for any Consequential Loss howsoever arising (including negligence) that results from the use of, or the inability to use, the App or any loss or transmission of any confidential or sensitive data or information.
  2. Subject to clause 8.4, we exclude any and all liability to you howsoever arising (including negligence) for:
    • Consequential Loss;
    • losses that you suffer or incur relating to any interruption in the operation of the App;
    • losses that you suffer or incur as a result of our breach of these Terms to the extent that our breach is caused by an event or circumstances beyond our reasonable control;
    • our reasonable actions in denying anyone access to the App for security reasons or default; and
    • actions taken in relation to these Terms in accordance with our obligations at law or any order issued by a court of law or relevant government authority, whether directly or indirectly arising in connection with the App.
  3. Subject to clause 8.4, the liability of Future by Design Australia for any loss or damage, howsoever arising (including negligence) suffered by you in connection with these Terms or your use of the App is limited, in aggregate, to the subscription fees paid by you to Future by Design Australia in the 12 months preceding the date of the event or series of connected events giving rise to the Claim.
  4. Clauses 8.1, 8.2 and 8.3 do not apply:
    • to our liability to you for losses that you suffer or incur relating to our failure to comply with any consumer guarantee set out in the Australian Consumer Law; or
    • to the extent that they would cause us to contravene a law or cause the applicable clause to be void or unenforceable.
  5. Each party’s liability to the other in connection with these Terms will be reduced proportionately to the extent that the other party or any of its personnel caused that loss.

Liability under the Australian Consumer Law

  1. If the Australian Consumer Law applies to any of the services or deliverables we provide to you under these Terms, our liability to you for loss that you suffer or incur relating to our failure to comply with any consumer guarantee set out in the Australian Consumer Law is limited to (at our election):
    • in the case of the services, the re-supply of the services or the payment of the cost of having the services supplied again; and
    • in the case of the goods, replacing those goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or acquiring equivalent goods, or paying the cost of having the goods repaired.

Confidentiality

You acknowledge and agree that information relating to the function or operation of the App and associated Intellectual Property Rights, screen or menu hierarchies, techniques, algorithms, know-how, current and future, relating to the App other than information that is known publicly (Future by Design Australia Confidential Information) is confidential information of Future by Design Australia. You agree to keep confidential all Future by Design Australia Confidential Information and not to use the Future by Design Australia Confidential Information except to the extent necessary to use the App in accordance with these Terms.

Privacy

  1. Your privacy is important to us.
  2. If you provide us with personal information in the course of using the App, we will handle that information in accordance with the Privacy Act 1988 (Cth) (Privacy Act), including the Australian Privacy Principles set out in the Privacy Act.
  3. Our privacy policy, which can be viewed online at www.amiflyingyet.com.au, provides more information about how we collect, use, disclose and protect personal information. If you have any questions about how we use your personal information, please contact us using the contact details at the bottom of these Terms.

Third party websites

  1. We may provide links to third party websites, resources or services on the App. These links are provided for your convenience only and we are not responsible for the availability of websites or resources offered by third parties. We do not endorse or accept responsibility for the content of such external websites or resources. Your access and viewing of any third party websites or resources is conducted at your own risk.

Term

  1. These Terms are binding on you from the date that you first access, use or register for the App and continue until terminated in accordance with these Terms.

Termination and suspension

  1. We may, acting reasonably, suspend your use of and access to the App, for a reasonable period until the issue has been resolved, for any of the following reasons:
    • to comply with our obligations under any applicable laws, or where requested by law enforcement or other government agencies;
    • your non-payment of the applicable subscription fees;
    • your fraud or suspected fraud;
    • where we believe that use of the App may cause loss to you or us, arising from the acts or omissions of you or a third party; or
    • where unexpected technical or security issues or problems arise.
  2. Where possible, we will give you reasonable notice of the suspension, however this may not be possible in all circumstances.
  3. Either party may terminate a subscription immediately by notice if the other party:
    • fails to remedy a Notice of Default; or
    • commits, or is reasonably suspected of committing, fraud.

Consequences of termination

  1. If your subscription is terminated for any reason then in addition to any other rights we may have:
    • your right to use the App will immediately be limited to the portions of the App (if any) that do not require registration;
    • we may immediately remove your account from the App; and
    • we may retain records relating to your account in accordance with general legal and accounting requirements.

Dispute resolution

  1. If a dispute arises between the parties in relation to these Terms, either party may give the other party a written notice (Dispute Notice) that they intend to arrange mediation. The parties must refer the dispute to an independent mediator within 15 days of the Dispute Notice.
  2. If the parties cannot agree on a suitable mediator, either party may contact the Queensland Law Society and request that they provide a mediator. The costs of the mediation must be paid by the parties in equal shares.
  3. If the dispute is not resolved by the mediation within 60 days after receipt of the Dispute Notice, either party may commence court or arbitration proceedings. Nothing in this clause 16 shall prevent a party from seeking urgent interlocutory relief.

Changes to the App and these Terms

These Terms (as amended from time to time) will govern any updates to, or new versions of, the App (Updates). You acknowledge and agree that Future by Design Australia is under no obligation to provide any Updates, can offer optional paid Updates, and can use Updates to add, remove, modify or otherwise alter functionality or features of the App.

We may amend these Terms from time to time and will provide you with 30 days prior notice of any changes by posting the new Terms, with the effective date of the change, on the App. Any such change will take effect from no earlier than the start of your next subscription period. If you do not wish to continue with your subscription because of the change, you are entitled to cancel your subscription prior to the change taking effect.

General

  1. Enduring clauses: The parties’ rights and obligations under clauses 5.1, 7.2, 8, 9, 10, 11, 15, 16 and 18, will survive the termination of these Terms for whatever reason.
  2. Jurisdiction: The laws of Queensland, Australia apply to these Terms and the parties submit exclusively to the courts of that jurisdiction.
  3. Severability: If any provision of this agreement is ruled by a court to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision or part provision of this agreement.
  4. Waiver: Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.
  5. Entire Agreement: This agreement contains the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to the subject matter of this agreement.
  6. Assignment: We may assign or novate our rights and obligations under these Terms at any time by notice on the App. Upon assignment or novation, our rights and obligations are binding on and will benefit our respective representatives, successors and assigns.

Definitions and Interpretation

In these Terms:

  1. App means the web-based ‘Am I Flying Yet?’ app that may be accessed at www.amiflyingyet.com.au or at such other domain as Future by Design Australia nominates from time to time.
  2. Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the fair trading legislation.
  3. Business Day means a day other than a Saturday, Sunday or public holiday in Brisbane, Queensland.
  4. Claim means any claim, notice, demand, investigation, action, proceeding, litigation, or judgment however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence) or statute and whether involving a party to these Terms of Use or third party.
  5. Consequential Loss means:
    • loss or corruption of data, loss of opportunity, loss of revenue, loss of profits, loss of contract, loss of business, loss of production and loss of goodwill; and
    • any punitive, exemplary, indirect or consequential loss.
  6. Intellectual Property Rights includes all copyright, trade mark, design, patents and other proprietary rights, and any rights to registration of such rights existing anywhere in the world, whether created before or after the date of these Terms of Use (as applicable), but excludes moral rights.
  7. Notice of Default means a written notice that sets out details of the other party’s default, and gives a reasonable deadline (of not less than five Business Days) by which the default must be remedied.
  8. User Data has the meaning given in clause 6.1.

Interpretation

The following rules of interpretation apply unless the context requires otherwise:

  1. a reference to a person includes a firm, a body corporate, an unincorporated association or an authority and vice versa;
  2. a reference to these Terms or another document includes any variation, novation, replacement or supplement to any of them from time to time;
  3. a reference to conduct includes any omission, representation, statement or undertaking, whether or not in writing; and
  4. specifying anything in these Terms after the words including, includes or for example or similar expressions does not limit what else might be included unless there is express wording to the contrary.

Contact us

If you have any questions about these Terms, or the App, please contact us by email: info@amiflyingyet.com.au

Last updated: 24 June 2021