By using our services, you agree to these terms and conditions.
1. Definitions and Interpretation
Unless the context otherwise requires:
Intellectual Property Rights means; any intellectual or industrial property rights (including any registered or unregistered trademarks, patents, designs, copyright, undisclosed information, etc.);
Services means the systems, information technology, works, project, tasks and assistance we make available to you as specified in the Terms and Conditions;
In this Agreement, headings are inserted for convenience only and do not affect interpretation, and unless the context otherwise requires references to a person include companies and government bodies; words importing the singular include the plural and vice versa; and words importing a gender include other genders.
2. Services
This Agreement is entered into between Kindyhub and you (“Customer”). Kindyhub and Customer are collectively referred to as the “Parties”, or when used individually, a “Party”.
In order to use the Services, you must first agree to the Terms and Conditions. You may not use the Services if you do not accept the Terms and Conditions.
3. Use of the Services by you
a) In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Kindyhub will always be accurate, correct and up to date.
b) You agree to use the Services only for purposes that are permitted by (a) the Terms and Conditions and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
c) You agree that you are solely responsible for (and that Kindyhub has no responsibility to you or to any third party for) any breach of your obligations under the Terms and Conditions and for the consequences (including any loss or damage which Kindyhub may suffer) of any such breach.
4. Your passwords and account security
a) You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
b) If you become aware of any unauthorised use of your password or of your account, you agree to notify Kindyhub.
5. Software updates
The Software, which you use, may provide updates from time to time from Kindyhub. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates as part of your use of the Services.
6. License from Kindyhub
a) Kindyhub gives you a personal, worldwide, royalty-free, and non-assignable and non-exclusive limited license, during the term of this Agreement, to use the software provided to you by Kindyhub, as part of the Services as provided to you by Kindyhub, referred to as the “Software”. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Kindyhub, in the manner permitted by the Terms.
b) You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Kindyhub, in writing.
c) Unless Kindyhub has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
7. Proprietary rights
a) You acknowledge and agree that Kindyhub (or Kindyhub’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Kindyhub and that you shall not disclose such information without Kindyhub’s prior written consent.
b) Unless you have agreed otherwise in writing with Kindyhub, nothing in the Terms and Conditions gives you a right to use any of Kindyhub’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
c) You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices), which may be affixed to or contained within the Services.
8. Mutual Responsibilities
a) Our Warranties
We warrant that we will carry out all Services in a workmanlike manner and in accordance with the descriptions in the Terms and Conditions.
b) Your Responsibilities
You agree that, unless the Terms and Conditions require otherwise:
i. you will obtain, procure and give any access, facilities, information, cooperation, permits, authorities, notices and licences (whether or not required by law) which we determine are reasonably needed to carry out this Terms and Conditions; an
ii. you will not assign or sublicense your rights or obligations under this Terms and Conditions without our consent. We will not unreasonably withhold such consent.
iii. your equipment must be compatible with, and not interfere with, our service, and must comply with all applicable laws, rules, and regulations.
c) Mutual Commitments
Each of us agrees:
i. to endeavour to safeguard such of the other’s confidential information (of which it is in possession) no less carefully than it safeguards its own confidential information;
ii. that rights under this Terms and Conditions are not exclusive;
iii. that neither of us is liable for breach or other failure due to circumstances beyond its reasonable control.
d) Acceptable Use of Services
In accepting the Services from us, you warrant that you will:
i. you will not reproduce, distribute, transmit, publish, copy, transfer or commercial exploit any information accessed through or received from the Services that would be an infringement of any copyright, patent, trade mark, design or other intellectual property right.
ii. not access, nor commit any other party to access, the Services for any purpose or activity of an illegal, fraudulent or defamatory nature.
iii. You acknowledge that we do not and cannot in any way supervise, edit or control the content and form of any information or data accessed through your use of the Services and we shall not be held responsible in any way for any content or information accessed by the Services.
iv. We disclaim all or any liability for any material on the Kindyhub offensive, upsetting, defamatory, and personally offensive and in any way unsuitable.
9. Taxes
You agree to pay any taxes and duties levied by any authority on, or in connection with, this Terms and Conditions (other than income taxes payable by us). This includes payment of the amount of GST according to the following principles: where we are liable (whether directly or via a GST group of which we are a member) to pay GST on any amount received from you relating to this Terms and Conditions, you shall, following receipt of a tax invoice from us, at the same time reimburse us the amount of GST. Terms used in the last sentence have the meanings defined in the GST Law as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 or any Act substituted for, validating or otherwise replacing that Act.
10. Limitations of Terms and Liability
Subject to overall provision in this agreement, you expressly understand and agree that Kindyhub, and its licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages, which may be incurred by you, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
11. Statutory Liability
Nothing in this Terms and Conditions purports to exclude, restrict or modify any condition, warranty, right or remedy which we must, by any applicable law, observe in your favour, and which we cannot, by contract, exclude, restrict or modify. To the extent such applicable law permits us to limit our liability in respect of such condition, warranty, right or remedy, we do so, including, in the case of Services supplied pursuant to this Terms and Conditions, the payment of the cost of having the Services performed again.
12. Indemnity
You agree that you are solely liable for the use you make of the results of our Services. You agree to indemnify us from any loss, cost, expense, demand or liability we suffer because of any claim which would not have been made against us had we not entered into this Terms and Conditions (other than to the extent our breach of this Terms and Conditions or negligence contributed to the claim).
13. Force Majeure
Neither Party shall be liable to the other Party (other than Customer’s obligation to pay Fees for Services already provided under this Agreement to Customer) for any default, delay or hindrance in the performance of any of its obligations under this Agreement to the extent such default, delay or hindrance is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, riots, terrorism, revolutions in any country, strikes or labour difficulties or any other similar cause beyond its reasonable control (each a “Force Majeure Event”). In the event of a Force Majeure Event, the parties shall be excused from further performance of the obligation(s) for as long as such Force Majeure Event prevails and the parties continue to use commercially reasonable efforts to recommence performance to the extent possible. If either party is so prevented, hindered or delayed in its performance, the nonperforming party shall immediately notify the other party.
14. Changes/Variations
Kindyhub may vary the terms of these Terms and Conditions at any time by giving it to you in person, sending it to you by mail or to your email address, making the information available on our websites. Such variations will only affect agreements entered into by you and us after the date of our notice.
15. Governing law
The laws of the state of NSW govern this Terms and Conditions and you and we submit to the non- exclusive jurisdiction of the courts of that state.
16. Disputes
Before resorting to litigation to resolve any dispute between us, we agree to allow a period of 14 days to elapse and, within that 14-day period, to hold good faith negotiations with a view to endeavouring to resolve that dispute.