MyWish – End User Licence Agreement
This end user licence agreement (EULA) applies to your use of the MyWish application for Apple and Google Android devices (MyWish App). The MyWish App is made available to you by Make-A-Wish® Foundation of Australia Ltd ABN 97 006 497 632 (Make-A-Wish, we or us).
Each reference in this EULA to you or your is a reference to the individual that agrees to comply with this EULA.
This EULA also applies to any child that you allow to use the MyWish App (where you are the parent or legal guardian of that child), with each such child referred to in this EULA as your child.
Other capitalised terms used in this EULA have been defined in this EULA.
The key sections of this EULA are listed below:
- MyWish App and Licence
- Acceptance of Terms and Licence
- Responsibility for your child
- Privacy and your personal information
- Account security
- Your use of the MyWish App
- Use with your device
- Make-A-Wish’s intellectual property rights
- Limitations on liability
- Account suspension or termination
- Changes to this EULA and the MyWish App
- Contact us
1. MyWish App and Licence
The MyWish App is designed to support wish children aged 6-9 in the early stages of their “Wish Journey” with us. We have developed the MyWish App with our partners: The Walt Disney Company Australia and New Zealand (creativity experts), Professor Lea Waters, AM, PhD (psychology expert) and Two Moos (digital specialists). We'd also like to acknowledge the work done by Christopher Peterson, PhD and Martin E. P. Seligman, PhD, in their book Character Strengths and Virtues: A Handbook and Classification, where they explore a multitude of character strengths. The reference for the book is: Peterson, C., & Seligman, M. E. P. (2004). Character strengths and virtues: A handbook and classification. New York: Oxford University Press and Washington, DC: American Psychological Association.
In the MyWish App, children create their own avatar and become space explorers, embarking on an adventure through time and space leading up to their “Wish Capture” visit. Children can complete a range of pre-wish missions that help them begin to imagine the possibilities of their wish and capture their ideas in playful and creative ways.
When you accept this EULA, Make-A-Wish grants to you and your child a licence to access and use the MyWish App in accordance with this EULA.
2. Acceptance of EULA and Licence
This EULA forms a binding legal agreement between you and Make-A-Wish. You are taken to have read, acknowledged and accepted this EULA by doing any one or more of the following:
- by accepting or consenting to this EULA electronically through the MyWish App (e.g. by clicking “I Agree” or similar language);
- by using the MyWish App; or
- by agreeing to any other document provided by Make-A-Wish that incorporates this EULA by reference.
If you do not agree to this EULA, you and/or your child may not be able to access or use the MyWish App.
You can only agree to this EULA if you are an individual that is 18 years old (or older).
We may use certain third party platforms and online marketplaces in order to operate and make the MyWish App available. Some of these third party providers require us to include certain additional provisions in this EULA (Third Party Terms). These are set out in the Appendix at the end of this EULA, and we may notify you of other additional Third Party Terms that apply from time to time. Where other Third Party Terms become applicable, we will use reasonable endeavours to notify you by email, through the MyWish App or other electronic means.
Use of the MyWish App is subject to these Third Party Terms. You are taken to have read, acknowledged and accepted these Third Party Terms by doing any one or more of the actions listed above. If you do not agree to any additional terms or Third Party Terms, we may require you and your child to cease accessing or using the MyWish App.
If there is any inconsistency between this EULA and the Third Party Terms, this EULA prevails to the extent of that inconsistency.
3. Responsibility for your child
When you allow your child to use the MyWish App:
- you acknowledge and agree that you will be responsible for supervising your child’s use of the MyWish App; and
- you agree that you are responsible for the acts and omissions of your child in connection with the MyWish App and this EULA, as if they were your acts and omissions.
4. Privacy and your personal information
When you and your child were invited by Make-A-Wish to download and use the MyWish App, you would have received a separate consent form that contains more detailed information relating to privacy and data security matters associated with the MyWish App (Consent Form). Nothing in this EULA is intended to override that Consent Form and the Consent Form is taken to form part of this EULA.
5. Account security
To use the MyWish App, we may require you to create a user account (or we may provide you with other instructions that allow us to restrict the use of the MyWish App only to authorised “Wish Journey” participants).
You must keep your password and/or access information secure and confidential at all times and you must not disclose your password or access information to anyone else. We may introduce new security features to make the MyWish App more secure, such as two-step authentication, and we may require you to use those new security features.
If you believe that your user details or the device that you use to access the MyWish App have been lost or stolen (or you become aware of any unauthorised use of your MyWish account or the MyWish App), you must take each of the following steps:
- reset your password (if we have required you to create a password); and
- notify us immediately at: [email protected]
Where we think there has been unauthorised access to personal data inside your MyWish account, we will let you know and give you information about what has happened. Depending on the nature of the unauthorised access, and if required by law, we may need to report the unauthorised access to relevant government authorities and the individuals whose personal information may have been compromised.
We do not charge you for using the MyWish App. However, you may be charged fees by your telecommunications provider for the data used in connection with the MyWish App.
7. Use of the MyWish App
For you or your child to be eligible to use the MyWish App, your child must be participating in a Make-A-Wish “Wish Journey”.
Your right to access and use the MyWish App is personal to you and is not transferable by you to any other person or entity (except to the extent required for you to allow your child to use the MyWish App). You and your child are only entitled to access and use the MyWish App for lawful purposes. In particular, you must not (and you must ensure that your child does not):
- use the MyWish App in any manner that is illegal or violates any applicable law or regulation;
- attempt to circumvent or disable the MyWish App or any technology features or measures in the MyWish App by any means or in any manner;
- attempt to modify, copy, adapt or reproduce any part of the MyWish App except as necessary to use it for normal operation;
- attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the code for the MyWish App or any technology features or measures in the MyWish App;
- distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the MyWish App to any third party (except as expressly permitted under this EULA);
- remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the MyWish App or used in connection with the MyWish App;
- attempt to undermine the security or integrity of the MyWish App;
- use, or misuse, the MyWish App in any way which may impair the functionality of the MyWish App or other systems used to deliver the MyWish App or impair the ability of any other user to use the MyWish App;
- attempt to gain unauthorised access to any materials, other than those to which you have been given express permission to access; or
- transmit, input into or otherwise use with the MyWish App, any files that may damage any other person's device or software, content that may be offensive or material or data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
We will strive to maintain the availability of the MyWish App 24 hours a day. However, use of the MyWish App may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the MyWish App or other actions that we, in our sole discretion, may elect to take. To the maximum extent permitted by law, we are not liable to you or any other person or entity for any loss, cost or damage that results from any scheduled or unscheduled downtime of the MyWish App.
9. Use with your device
Use of the MyWish App will be available through a compatible mobile device or tablet, and will require the use of the internet, network access and certain types of software on your device. You agree that you are solely responsible for these requirements, including any applicable changes, updates, maintenance and fees as well as the terms of your agreement with your device and telecommunications provider.
10. Make-A-Wish’s intellectual property rights
We license, but do not sell, to you the MyWish App that you download. We remain the owner of the MyWish App and all other associated systems at all times.
All intellectual property rights in the MyWish App, and in any content within the MyWish App (including the “look and feel”, text, graphics, software, photographs and other images, videos, sound, trade marks and logos) are owned by Make-A-Wish or our technology partners/licensors. Except as expressly permitted by this EULA, you must not use or permit the use of any of Make-A-Wish’s intellectual property rights for any purpose other than to enable you and/or your child to use the MyWish App. You must not sell, transfer or divulge any of those intellectual property rights to anyone without our prior written consent.
To the extent that you or your child use the MyWish App to create any artwork, text, videos, photographs, pictures, sound recordings or other copyright works (Works), you immediately grant us an irrevocable, world-wide, perpetual licence to use, reproduce, adapt and modify those Works for our own purposes (without attributing you, your child or any other person as an author of (or having contributed to) the Works).
While we try our best to make sure that content made available through the MyWish App is correct, you acknowledge that the MyWish App may make content available which is derived from a number of sources, for which we are not responsible. Except as otherwise expressly set out in this EULA and to the maximum extent permitted by law, we make no representation, warranty or guarantee as to:
- the accuracy, completeness, currency, correctness, reliability, integrity, quality, fitness for purpose or originality of any content in the MyWish App;
- the MyWish App being free of any viruses or other code or software that may contaminate, infect, corrupt, destroy or otherwise adversely affect any other software or operating system on any device used to access or use the MyWish App; or
- the future performance of any upgrades made to the MyWish App.
The operation of the MyWish App is dependent on telecommunications services, computer networks and the internet, which can be unpredictable and may from time to time interfere with the use of the MyWish App. In addition, Make-A-Wish does not control these telecommunications services, computer networks and the internet services that are required to access the MyWish App from your device. Accordingly, we not responsible for the security of any information that you choose to communicate with Make-A-Wish or the MyWish App while it is being transmitted (or for any information lost during transmission).
12. Limitations on liability
Except as otherwise provided in this EULA and to the maximum extent permitted by law, any warranty, guarantee, condition, representation, undertaking or other right that would be implied in this EULA or is otherwise imposed by statute, common law, equity, trade, custom or usage, is excluded. Notwithstanding the other provisions in this EULA, we do not exclude, restrict or modify any warranty, guarantee, condition, representation, undertaking or other right under any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute or cause any part of this EULA to be void (Non-Excludable Guarantee). To the maximum extent permitted by law, our liability for a breach of a Non-Excludable Guarantee is limited, at our option, to the supplying of the services again or the payment of the cost of have the services supplied again.
13. Account suspension or termination
This EULA will continue to apply until terminated by either you or Make-A-Wish as set out below.
We may, at any time, terminate our legal agreement under this EULA with you if:
- your child is no longer participating in a “Wish Journey” with us;
- you or your child have breached any provision of this EULA;
- if Make-A-Wish, in its sole discretion, believes it is required to do so by law; or
- for any reason and at any time by giving you 10 days’ prior written notice.
We may also temporarily suspend access to the MyWish App if we suspect that it is being used in connection with unauthorised, fraudulent or unlawful activities or that the security of your MyWish account has been compromised.
You may cancel your MyWish account at any time by emailing [email protected]
14. Changes to this EULA and the MyWish App
Make-A-Wish may change this EULA at any time by giving you at least 14 days’ written notice (which may be by email, through the MyWish App or other electronic means). You may refuse to accept any revised EULA by giving written notice to Make-A-Wish within that 14 day notice period, in which case you and your child may be required to cease to access and use the MyWish App. If you do not make such an election within that 14 day notice period or if you continue to access or use the MyWish App after that 14 day notice period, you are taken to have accepted and agreed to be bound by the revised EULA.
We reserve the right to change the design, features and/or functionality of the MyWish App by making the updated MyWish App available for you to download or, where your device settings permit it, by automatic delivery of updates. You are not obliged to download the updated MyWish App, but we may cease to provide and/or update content to prior versions of the MyWish App and, depending on the nature of the update, in some circumstances you may not be able to continue using the MyWish App until you have downloaded the updated version.
This EULA is governed by and must be construed in accordance with the laws in force in Victoria, Australia. You submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this EULA.
Any failure or delay by Make-A-Wish to exercise any right conferred by this EULA will not be considered as a waiver of those rights.
Any provision of this EULA that is held to be invalid or unenforceable in any jurisdiction must:
- to the extent it is capable of being read down in that jurisdiction, be read down in that jurisdiction to the minimum extent necessary to achieve validity or enforceability in that jurisdiction; and
- to the extent not capable of being read down in that jurisdiction, be severed from this EULA in that jurisdiction,
without invalidating or affecting the remaining provisions of this EULA or the validity or enforceability of that provision in any other jurisdiction.
16. Contact us
1. Apple’s Requirements.
If you download the MyWish App from Apple’s App Store, the following terms also apply to you:
(a) Acknowledgement: You acknowledge that the agreement and licence under this EULA is between you and Make-A-Wish only, and not with Apple and that Apple is not responsible for the MyWish App or its content.
(b) Scope of Licence: The licence granted to you for the MyWish App is a limited, non-transferable license to use the MyWish App on any Apple-branded products that you own or control and as permitted by the “usage rules” set forth in the terms of service applicable to the Apple App Store.
(c) Maintenance and Support: Make-A-Wish and not Apple is solely responsible for providing any maintenance and support services with respect to the MyWish App. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the MyWish App.
(d) Warranty: Make-A-Wish is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed in the EULA. In the event of any failure of the MyWish App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) of the MyWish App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the MyWish App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Make-A-Wish’s sole responsibility (subject to the EULA).
(e) Product Claims: Make-A-Wish, not Apple, is responsible for addressing any user or third party claims relating to the MyWish App or the user’s possession and/or use of the MyWish App, including, but not limited to: (i) product liability claims; (ii) any claim that the MyWish App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation.
(f) Intellectual Property Rights: You acknowledge that, in the event of any third party claim that the MyWish App or your possession and use of the MyWish App infringes that third party’s intellectual property rights, Make-A-Wish, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim (subject to the EULA).
(g) Legal Compliance: You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Developer Contact Info: Any questions, complaints or claims with respect to the MyWish App should be directed to Make-A-Wish at Suite G.01, Office C, Building 3, 658 Church St, Richmond, Victoria 3121, Australia (email: [email protected] or telephone: +61 3 9426 0777).
(i) Third Party Terms of Agreement: You must comply with any applicable third party terms of agreement when using the MyWish App.
(j) Third Party Beneficiary: You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of the agreement and licence under this EULA, and that, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof.
2. Google’s Requirements.
If you downloaded the MyWish App from Google’s Play Store, you acknowledge that the agreement and licence under this EULA is between you and Make-A-Wish only, and not with Google and that Google is not responsible for the MyWish App or its content. You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the MyWish App.