TERMS OF SERVICE
MY KINDER MOMENTS PTY LTD ABN 33 613 583 4673>
The Company provides the My Kinder Moments web and mobile platform that allows Parents to follow key moments of a child’s progress, as recorded and managed by Educators.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
- (a) ABN means Australian Business Number.
- (b) Account means a registered User account within My Kinder Moments.
- (c) Agreement means these Terms of Service.
- (d) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
- (e) Company means My Kinder Moments Pty Ltd ABN 33 613 583 467.
- (f) Educator means (without limitation) a person, organisation, business or entity that:
- i Holds an Educator Account; and
- ii Is authorised to access an Individual’s Information.
- (g) Fee means any fee payable by a User for access to, or use of My Kinder Moments.
- (h) Guardian means a legal guardian of a Student, and may include a Parent.
- (i) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- (j) Individual means a person with Information about them in My Kinder Moments.
- (k) Information means any information about an Individual available via My Kinder Moments including Personal Information.
- (l) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
- (m) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
- (n) Moment means any User Content uploaded by an Educator relative to a Student, and generally refers to any artwork, photographs, activity records, achievements, certificates, diary entries or academic progress reports.
- (o) Parent means an Individual that holds a Parent Account.
- (p) Member means any authorised user that an Educator delegates permissions to all or some of the features associated with the Educator’s account.
- (q) Moral Rights means:
- i Moral rights pursuant to the Copyright Act 1968 (Cth);
- (r) My Kinder Moments means the web and mobile application accessible from:
- i Mobile. From Apple’s AppStore, GooglePlay and any other native or web-based mobile applications made available from time-to-time; and/or
- ii Web. From the application accessed through the URL http://www.mykindermoments.com (or any other domain used by the Company from time-to-time).
- (s) Personal Information has the same meaning as in the Privacy Act 1988 (Cth).
- (t) Privacy Act means the Privacy Act 1989 (Cth).
- (v) Student means a student or child in the care of a Parent or Guardian enrolled with an Educator.
- (w) Subscription Fee means a Fee charged by the Company for access to features associated with a particular subscription type.
- (x) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- (y) Third Party means any person that is not a User.
- (z) User means an Educator, Member or Parent that uses My Kinder Moments.
- (aa) User Content means information, documents, images or other data that is uploaded or input into My Kinder Moments by the User or that forms part of the User’s Intellectual Property.
- (bb) Website means the Company’s website at http://www.mykindermoments.com/.
1.1 The Company provides the My Kinder Moments web and mobile platform.
1.2 This Agreement governs the use of My Kinder Moments by any User and limits the liability of the Company to any User. Each User uses My Kinder Moments at its own risk.
2. USING MY KINDER MOMENTS
(a) My Kinder Moments may allow an Educator to:
i Register an Educator Account;
ii Create a webpage for the Educator;
iii Enrol Students;
iv Add classrooms;
v Record Moments;
vi Invite Individuals to create a Parent Account;
vii Share Moments with Parents;
viii Communicate with Parents;
ix Add Member account;
x Manage permissions for Member accounts; and
xi Such other features that the Company may make available via My Kinder Moments from time-to-time.
(b) My Kinder Moments may allow a Parent to:
i Register a Parent Account;
ii View the Moments of a Student that is in the Parent’s care, in accordance with their subscription type;
iii Communicate with Educators; and
iv Such other features that the Company may make available via My Kinder Moments from time-to-time.
(c) My Kinder Moments may allow a Member to use such features as an Educator may enable the Member’s account.
2.2 Paying for My Kinder Moments
(a) In general My Kinder Moments shall be free to use for Educators and Parents, however additional features may be offered to Users for a Fee.
(b) In order to access the features associated with a premium Parent subscription type, the Parent agrees to pay the appropriate Subscription Fee. The Parent shall pay all Subscription Fees in advance via the credit card payment functionality in the Platform.
(c) GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
(d) The Company does not offer refunds except:
i Where the Company terminates this Agreement without cause, in which it shall refund the balance of any Subscription Fees paid in advance; or
ii As required by law.
(e) Fees shall be as advertised within My Kinder Moments or on the Website from time-to-time. The Company reserves the right to change the pricing of Fees from time-to-time at its discretion. Any changes to Fees (including a Subscription Fee) shall be advertised via the Website. The Company will notify Users of any changes, which shall take effect from the commencement of the User’s next subscription period (if applicable).
3.1 The Educator agrees and warrants that:
(a) The Educator has obtained all authorisations necessary prior to uploading or inputting Information into My Kinder Moments, especially in regard to an Individual;
(b) The Educator is solely responsible for ensuring that its use of My Kinder Moments and storage of Information in My Kinder Moments is compliant with all relevant laws and/or any agreement with each Individual, or the parent or legal guardian of the Individual;
(c) The Educator is responsible for ensuring that each Member that is creates and delegates permissions to within My Kinder Moments accepts and complies with these Terms of Service at all times. The Educator shall remain responsible for each Member to whom it grants access to My Kinder Moments.
(e) To the extent permitted by law, the Company shall not be liable to the Educator under any circumstance for any period that the Educator does not pay a Fee to use My Kinder Moments;
(f) To the extent permitted by law the Educator indemnifies and will hold the Company harmless against all costs, claims damages and expenses for any:
i Penalty imposed upon the Educator;
ii Claim of infringement of intellectual property rights made by an Individual or Third Party;
iii Claim of breach of confidentiality by an Individual or Third Party;
As a result of the Educator’s use of My Kinder Moments;
(g) It indemnifies the Company against all costs, claims damages and expenses for any personal injury or damage to property caused to the person or property of a Student, Parent or Third Party as a result of the its use of My Kinder Moments;
(h) It shall not store or record any Information that it can access through My Kinder Moments unless it is fully compliant with the Privacy Act;
(h) It shall not store or record any Information that it can access through My Kinder Moments unless it is fully compliant with the Privacy Act;
- i Creating an Account;
- ii Creating, uploading or updating Moments;
- iii Communicating with other Users; and
- iv Any other information that may be accessed by the Educator or another User;
(j) It shall not disclose any Information about an Individual to any other person or party other than as authorised by the Individual, or the parent or legal guardian of the Individual;
(k) It shall ensure that any Information it updates about an Individual is true and accurate and agrees to update that Information to ensure that it is current;
(l) It shall ensure all Information it has access to through its use of My Kinder Moments is kept and used in accordance with applicable privacy laws in the jurisdiction;
(m) It shall only use My Kinder Moments for its intended purpose as set out in this Agreement;
(n) It shall comply with all anti-spam legislation in its jurisdiction;
(o) The Company may restrict access only to reputable and/or registered Educators; and
(p) It grants the Company a non-exclusive, royalty free and perpetual licence to display the Educator’s name and/or logo on its website, and in other promotional material for the purposes of promoting My Kinder Moments. The Educator may revoke this licence at any time by notifying the Company in writing.
3.2 Any person who registers as an Educator in My Kinder Moments warrants that he or she is an authorised representative of that Educator with the requisite authority to bind the Educator to this Agreement.
4.1 Each Member’s access shall be created and controlled by an Educator.
4.2 A Member shall only have access to such features as may be delegated to that Member by the Educator that created the Member’s account.
4.3 In no event will the Company be responsible to a Member. If the Member experiences any issues with My Kinder Moments it must notify the Educator that created the Member’s account to deal with the Company in regards to the issue.
5.1 An Individual’s access to My Kinder Moments may be created, limited and cancelled by the Educator authorising the creation of a Parent Account for an Individual at the Educator’s discretion.
5.2 Each Parent and/or Individual agrees and accepts that:
(a) Under no circumstances will the Company be responsible to an Individual that is a Student or Parent enrolled with an Educator for that Educator’s use of the Individual’s Information;
(b) Any claim based on an Individual’s use of My Kinder Moments must be directed to the Educator;
(c) The Parent is responsible for paying the Company the Fees for its use of My Kinder Moments.
(d) The Company may share the Information input or uploaded by the Individual with the Individual’s Educator;
(e) Any information shared by the Company with an Educator may be retained by the Educator for the purpose of updating their administrative records and/or compliance purposes, or such other purpose as may be agreed between the Individual and the Educator;
(f) My Kinder Moments may send the Individual emails, text messages, push notifications and other alerts on behalf of Educators;
(g) Any consent or statement made by an Individual through My Kinder Moments is valid and binding unless and until revoked by the Individual, and an Educator may rely on a consent or statement made through My Kinder Moments without any need to further verify the veracity of that consent;
(h) All information about an Individual is used and controlled by the Individual or Educator, not the Company;
(i) All information input into My Kinder Moments about an Individual is provided with that Individual’s consent;
(j) The Individual must ensure that all their Personal Information on My Kinder Moments is true and accurate, and agrees to update that information in order to ensure that it is current;
(k) The Educator authorised by the Individual to receive the Information and other personal information may have its own policy governing access to this information and the use of My Kinder Moments.
6. GENERAL USER TERMS
6.1 Where a User shares any Information via My Kinder Moments, the User agrees and acknowledges that the User is solely responsible for:
(a) Whomever it sends any links granting access to the Information;
(b) The use of Information by anyone with access to it;
6.2 To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using My Kinder Moments. Any reliance on the Information available through My Kinder Moments is at the User’s own risk.
6.3 Any dispute that may arise between Users must be dealt with strictly between those Users and not involve the Company in any way. Under no circumstance will the Company perform a dispute resolution role for a dispute between Users.
6.4 My Kinder Moments may impose restrictions on the amount of data storage available to a User, or the length of time data may be stored in accordance with the User’s account type. Once data storage limits have been reached, My Kinder Moments may remove the oldest Moments stored within My Kinder Moments in order to enable the creation of new Moments. User’s are advised to back-up their data from My Kinder Moments frequently in order to avoid loss of data.
6.5 My Kinder Moments does not keep a back-up of records or Moment documents that have been deleted by a User, or been removed as a result of the User exceeding storage capacity. If a User deletes such a record or Moment, no User shall have a claim against the Company.
6.6 My Kinder Moments may be hosted on servers located outside Australia and may also use email servers located outside of Australia. Such services may host or transmit an Individual’s Information.
6.7 The Company may restrict access to My Kinder Moments to certain jurisdictions where it is able to offer My Kinder Moments.
7. GENERAL CONDITIONS
(a) By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use My Kinder Moments for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
(b) The Company may issue the licence to the User on the further terms or limitations as it sees fit.
(c) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit with or without notice, including for breach of the terms and conditions in this Agreement by the User.
7.2 Modification of Terms
(a) The terms of this Agreement may be updated by the Company from time-to-time.
(b) Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using My Kinder Moments. Should they not accept the new terms, the User can simply stop using My Kinder Moments.
(a) The User agrees and accepts that My Kinder Moments is:
i Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
ii Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to My Kinder Moments is available to the User unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter My Kinder Moments.
(a) The Company provides user support for My Kinder Moments via the email address info@mykindermoments.
(b) The Company shall endeavour to respond to all support requests within 3 Business Days.
7.5 Use & Availability
(a) The User agrees that it shall only use My Kinder Moments for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
(b) The User is solely responsible for the security of its username and password for access to My Kinder Moments and all use under their My Kinder Moments account. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its My Kinder Moments account.
(c) The User agrees to ensure that all information uploaded on My Kinder Moments is appropriate, accurate, true and current at all times. The Company shall have the right to edit or remove any information uploaded to My Kinder Moments in its absolute discretion.
(d) The User agrees that the Company shall provide access to My Kinder Moments to the best of its abilities, however:
i Access to My Kinder Moments may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to My Kinder Moments.
(a) Security. The Company takes the security of My Kinder Moments and the privacy of its Users very seriously. The User agrees that they shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
(b) Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
(c) Storage. Data that is stored by the Company shall be stored according to accepted industry standards.
(d) Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.
7.8 Intellectual Property
(a) Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of My Kinder Moments.
(c) The My Kinder Moments Application. The User agrees and accepts that My Kinder Moments is the Intellectual Property of the Company and the User further warrants that by using My Kinder Moments the User will not:
i Copy, reproduce, distribute, licence or sell My Kinder Moments or the services that it provides for the User’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in My Kinder Moments or any documentation associated with it.
(d) Content. Notwithstanding User Content, all content submitted to the Company, whether via My Kinder Moments or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to My Kinder Moments.
7.9 Disclaimer of Third Party Services & Information
(a) The User acknowledges that My Kinder Moments Is dependent on third-party services, including but not limited to:
i Banks, credit card providers and merchant gateway providers;
ii Telecommunications services;
iii Hosting services;
iv Social media services;
v Email services; and
vi Analytics services.
(b) The User agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of My Kinder Moments due to third-party services; or
ii Information contained on any linked third party website.
7.10 Liability & Indemnity
- (a) The User agrees that it uses My Kinder Moments at its own risk.
- (b) The User acknowledges that My Kinder Moments does not provide educational or childcare services, and has no direct duty of care to any Student. Any welfare or educational concern a User may have with regard to a Student must be directed to the relevant User, and not to the Company.
- (c) The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances, including (without limitation) any loss or damage to property, or personal injury caused by a User.
- (d) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with My Kinder Moments, including any breach by the User of these Terms.
- (e) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use My Kinder Moments, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
- (f) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
- i The re-supply of services or payment of the cost of re-supply of services; or
- ii The replacement or repair of goods or payment of the cost of replacement or repair.
- (a) Either party may terminate this Agreement by giving the other party written notice.
- (b) Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
- (c) Termination does not affect any of the rights accrued by a party prior to termination, and he rights and obligations under clauses 6.9, 6.12 and 6.13 survive termination of this Agreement.
7.12 Dispute Resolution
- (a) If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- i Includes or is accompanied by full and detailed particulars of the Dispute; and
- ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
- (b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
- (c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
- (d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
- (e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
7.13 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User agrees that when it provides any consent, authority or agreement through My Kinder Moments it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
(c) The User agrees that any request for a consent, authority or agreement it sends to other Users through My Kinder Moments as an electronic transaction may be sent directly from its email address.
(d) The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
(e) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(f) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(g) Notices must be sent to the parties’ most recent known contact details.
(h) The User may not assign or otherwise create an interest in this Agreement.
(i) The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
(a) Special Conditions. The parties may agree to any special conditions to this Agreement in writing.
(b) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with, the terms of any other Agreement between the Company and the User, or any special conditions made under this Agreement, as relevant, the terms of those other agreements or special conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
(d) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
(e) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
(g) Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.