1.1 These terms and conditions, including the data processing terms set out in the Addendum to these terms and conditions (together referred to as the “Terms”) set out the legal agreement between you, an Early Years Organisation (“Early Years Organisation, you, your”) and Nursery Book Limited, a company incorporated in England at University of Bath Innovation Centre, Carpenter House, Broad Quay, Bath, BA1 1UD, trading as Kinderly (“Kinderly, we, our, us”) for:
1.3 By accepting these terms, you warrant and represent that you have the requisite authority from the Early Years Organisation to do so and to legally bind the Early Years Organisation.
1.4 Kinderly may update these Terms from time to time. Whilst Kinderly will endeavour to notify you of any significant changes it makes to these Terms, by continuing to use the Products you automatically agree to any updated version of the Terms from the time they are uploaded to the Products. Therefore please review the relevant pages on the Products regularly. Should you object to any term or condition, guideline, or subsequent changes made to these Terms and/or the Products then you must immediately cease use of the Products.
2.1 Our website may offer you the ability to enter:
This is limited to one free trial per Early Years Organisation for each product and we reserve the right to refuse or subsequently withdraw a free trial if we reasonably suspect that it has been requested by an individual working within a Early Years Organisation which has previously utilised a free trial.
2.2 If you have entered your payment details, you will automatically enter a Subscription unless you choose to cancel prior to the end of the free trial.
2.3 We reserve the right to withdraw the ability to enter or continue a free trial, or restrict the functionality available under a free trial, at any time in our sole discretion.
3.1 Provided you are a Early Years Organisation, you may subscribe for the Products by following the instructions on our website (“Subscription”). You agree not to attempt to subscribe for the Products if you are not a Early Years Organisation and do not meet any of the registration requirements set out on our website from time to time. If we reasonably suspect that any Subscription is being made or utilised (except as permitted under these Terms) by any person who is not representing a Early Years Organisation, we reserve the right to suspend or terminate the Subscription with immediate effect and without liability to you.
3.2 The price payable for the Subscription is clearly set out on our Website or on our quotation to you. Prices are exclusive of any applicable value added tax or other sales tax, which shall be payable in addition.
3.3 All monies due from you must be paid in advance and shall be non-refundable, even where the Subscription is cancelled or terminated early.
3.4 We reserve the right to change our pricing from time to time. Price changes shall not apply retrospectively but shall be applied on any renewal of your Subscription.
3.5 If you fail to pay any fees or charges payable for your Subscription, we reserve the right to suspend your access to the Products unless and until such fees and charges are paid in full.
4.1 Subscriptions automatically renew on a monthly or yearly basis unless cancelled. We will notify you by email prior to the renewal date and the price payable on renewal. On the renewal date, we shall automatically take payment from your credit card for the price payable. In the event that we are unable to take payment from your nominated payment method, we will contact you to rectify the issue and you agree to remedy the non-payment promptly.
4.2 If you wish to cancel your Subscription, you may do so with one months advance notice by contacting us at firstname.lastname@example.org.
4.3 Any cancellation shall take effect 30 days after your email is received. You shall continue to have access as normal during the notice period. No refund shall be issued in respect of fees already paid for the Subscription and you shall continue to be liable for any fees or charges payable in respect of the remaining notice period.
4.4 On cancellation or termination of the Subscription, your right to use the Products shall terminate. We may provide you with limited access to the Products to enable you to access and export certain information from the Products but shall not be obliged to do so and may revoke such access at any time. It shall be your responsibility to export and download all relevant data and Content from the Products prior to termination of your Subscription.
4.5 We may terminate your Subscription and access to the Products with immediate effect by giving you written notice if you:
5.1 Products The Products support the EYFS framework and are compliant with applicable laws and regulations regarding the storage, collection and communication of personal data relating to children. They provide password-based in-application security.
5.2 The Early Years Organisation may export information it has uploaded to the Products as a PDF file to share it with parents or guardians (“Parents”) of the children in respect of which it has recorded such content.
5.3 The Early Years Organisation is fully responsible for complying with all applicable data protection and privacy laws in relation to its use of the Products and any use of the Products by members of its staff and any parents or guardians of children within its care. The data processing terms set out in the Addendum to these Terms set out the obligations of the Early Years Organisation in relation to the same in more detail.
5.4 Content from The Products cannot be connected with, published to or shared on social networks or any other third party applications, websites or products.
5.5 We may change the nature or provision of the Products at any time. We may tell you about any such change by email or by posting details on our website. If a change we make in the provision of the Products involves action on your part, and you do not take that action, we are entitled to terminate provision to you without notice.
6.1 You can only access, download or use the Products either if you are a Early Years Organisation or if you have been authorised to use the Products by a Early Years Organisation registered as a user of the Products. If you are a Parent user of Kinderly Together, separate terms and conditions apply to your use of the Products, available here.
6.2 Each individual using Kinderly Together must be at least 18 years old and must be a director, officer, qualified Early Years practitioner and/or an employee of a Early Years Organisation. Prior to creating a profile on Kinderly Together for any child you must either be authorised to do so by such child’s Parent or must be in loco parentis with regards to such child.
6.3 No individual may be given access to Kinderly Together if he/she has been convicted of or is pending trial for any criminal offence (other than an offence under the road traffic legislation) or if he/she has ever been the subject of a restraining order, in each case whether in the UK or in any other jurisdiction.
6.4 By using the Products (or authorising an individual to use the Products ), the Early Years Organisation warrants that:
6.5 As a condition of your use of the Products you agree that you will not:
7.1 In providing you with access to the Products, Kinderly reserves all rights not specifically granted by these Terms, including the following rights, and in accessing, browsing or otherwise using the Products you grant to Kinderly and agree that Kinderly shall have the following rights:
8.1 Without prejudice to any other provision of these Terms, you hereby represent and warrant that in respect of any messages, comments, files, images, photos, videos and all other materials (“Content”) uploaded to the Products and/or transmitted to any member via the Products by you that:
iii. is not in breach of OFSTED rules or guidelines in force from time to time;
vii. does not contain libellous or otherwise untrue statements about any person (whether living or dead) and does not harass or advocate the harassment of any person;
viii. is not likely to cause offence to any viewer of such Content;
8.2 You are permitted to upload images and videos of infants and children on condition that the children are appropriately clothed and you have the consent of the children’s Parents to do so. For the avoidance of doubt, you must not post an image or video of a naked child.
8.3 You acknowledge and agree that Kinderly may (but shall not be obliged to) review and approve some or all Content (at its sole and absolute discretion) uploaded to the Products and/or transmitted by you to any other user via the Products. Kinderly shall be entitled to remove any Content without notice and without giving any reason. Further you acknowledge and agree that Kinderly may be required to provide information about the origin of any unlawful Content published and/or the occurrence of any unlawful activity occurring on the Products to any police or judicial authority in any country in which such Content has been viewed and is illegal and you hereby irrevocably authorise Kinderly to provide such information to such persons (on request or in our discretion) without consulting or informing you.
8.4 You understand that:
8.5 You undertake not to share any Content relating to a child to anyone other the children’s parent(s) or guardian. Content relating to a child is highly sensitive and must be treated with the utmost care. It is your responsibility to ensure that any Content is uploaded to the profile of the correct child and that any Content is only accessible to such child’s parent(s) or guardian.
9.1 Kinderly and/or its licensor(s) are the sole owners of the Products, which includes any software, domains, design, text, graphics and all software and source code connected with the Products. The Products are protected by UK and International copyright, trademark, patent and other intellectual property laws. Without limitation, this means that you may not sell, export, license, modify, copy, distribute or transmit the Products (or any part of it) or any material provided through the Products without Kinderly’s prior express written consent.
9.2 Any unauthorised use of the Products will result in the automatic termination of the limited license granted by us. Kinderly reserves the right to terminate the limited license without notice at any time following an unauthorized use by you of the Products.
9.3 Kinderly and its graphics, logos, icons and service names related to the Products are registered and unregistered trademarks or trade dress of Kinderly. They may not be used without Kinderly’s prior express written permission. All other trademarks not owned by Kinderly that appear in connection with the Products are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by Kinderly.
9.4 During the use of Kinderly Together, any Content uploaded by you shall at all times belong to you. When you upload any Content to Kinderly Together, you grant Kinderly a limited non-exclusive, perpetual, transferable, irrevocable, sub-licensable and royalty-free licence to use, modify, adapt, translate, and create derivative works of the elements of such Content which does not include personal or identifiable information. You may at any time require Kinderly to delete and destroy Content uploaded by you to Kinderly Together. Kinderly shall (to the extent technically possible and unless prevented by operation of law or by order of any court) comply with your request within 14 days of receipt of such request.
10.1 Whilst Kinderly has implemented commercially reasonable technical and organisational measures to secure your personal information and user Content from unauthorised use, we cannot guarantee that unauthorised third parties will never be able to defeat those measures. In particular, Kinderly Together is reliant on you to ensure that only parents and guardians of children under your care are allowed to create a profile and view Content relating to their child. Please remember that competent hackers in possession of your tablet may be able to hack your tablet and the application. Please therefore ensure that your tablet contains password protection and that you download an appropriate application which deletes all data in the event that your tablet is stolen. Kinderly shall not be liable for any disclosure or access to Content or personal data by unauthorised third parties, except to the extent caused by its negligence or breach of these Terms.
11.1 By downloading and/or using the Products and/or material provided through the Products, you consent to receiving electronic communications and notices from Kinderly. You agree that any notice, agreement, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
12.1 Kinderly provides the Products “as is” and without any warranty or condition, whether express, implied or statutory. Kinderly specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Kinderly assumes no liability or responsibility for any errors or omissions in the Products; any failures, delays or interruptions in the Products; any losses or damages arising from the use of the Products; or any conduct by users of the Products, except to the extent required by law.
12.2 Kinderly shall not be liable in the event that any defect or otherwise in the Products results in you losing or being unable to access (whether temporarily or permanently) any Content.
12.3 In no event shall Kinderly, its shareholders, directors, officers, employees or agents be liable (jointly or severally) to you for loss of use or any special, incidental, indirect or consequential damages arising out of or in connection with the Products or these Terms, on any theory of liability (including contract, tort, negligence, or otherwise), and whether or not advised of the possibility of damage.
12.4 Kinderly does not seek to exclude liability for death or personal injury caused by our negligence, or fraud or fraudulent misrepresentation on the part of Kinderly.
12.5 You acknowledge and agree that Kinderly is not responsible for the accuracy of any information published on the Products by users and does not warrant that any information appearing on the Products is accurate, true or complete.
12.6 From time to time you may use or access services, promotions and Products of third parties. In using or accessing third party services, promotions and websites, you agree to be bound by the terms of service of such third parties governing their services, promotions and websites and hereby acknowledge that we shall not be responsible for the provision of services, accuracy of promotions or content of websites belonging or operated by third parties.
12.7 Subject to all of the foregoing, Kinderly’s total liability to you in respect of your Subscription and use of the Products shall be limited, whether in contract, tort (including negligence), breach of statutory duty or otherwise, to the total amount paid to us by you for the Subscription as at the date on which the cause of action arises.
13.1 You agree to indemnify and hold Kinderly and its related companies, and each of their respective shareholders, directors, officers, employees, agents and merchant partners harmless from and against any third-party claim or cause of action, including reasonable attorneys’ fees and court costs, arising, directly or indirectly, out of your use of the Products or your violation of any law or the rights of any third party. Without limiting the data processing terms set out in the Addendum, you agree to indemnify and hold Kinderly and its related companies, and each of their respective shareholders, directors, officers, employees, agents and merchant partners harmless from and against any third-party claim or cause of action , including reasonable attorneys’ fees and court costs arising, directly or indirectly, out of any error by you in inputting Content relating to a child or otherwise allowing any Content relating to that child to become available to and/or accessible by any person other than relevant members of staff of the Early Years Organisation or the parent(s) or guardian of such child.
14.1 You agree that these Terms and any claim, dispute or controversy arising out of in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims), the Products, Kinderly’s advertising or any related transaction between you and Kinderly shall be governed by and construed in accordance with English law. Any dispute or claim arising out of or in connection with such matters (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the courts of England and Wales.
15.1 These Terms are agreed between you and Kinderly. No person shall have any rights under or connection with these Terms under the Contracts (Rights of Third Parties) Act 1999.
15.2 If any court or competent authority decides that any term of these Terms is held to be invalid, unlawful or unenforceable to any extent, such term shall, to that extent only, be severed from the remaining terms, which shall continue to be valid to the fullest extent permitted by law.
15.3 Kinderly’s failure to enforce any provision of these Terms shall not constitute a waiver of that or any other provision and will not relieve you from the obligation to comply with such provision.
15.4 You are not permitted to assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights under these Terms without Kinderly’s prior express written consent.
15.5 These Terms set forth the entire understanding and agreement between you and Kinderly with respect to the subject matter hereof.
16.1 We are always pleased to hear from our customers and are grateful for any time you spend, providing us with the knowledge we need, to ensure our customers are completely satisfied – we want you to return to the site and to recommend us to your colleagues, friends and family. If you have any questions or feedback about this document, please do not hesitate to contact us at email@example.com.
17.1 This document was last updated 2nd April 2019.
DATA PROCESSING TERMS
The following definitions and rules of interpretation apply in these Processing Terms.
1.2 The Annex forms part of these Processing Terms and will have effect as if set out in full in the body of these Processing Terms. Any reference to these Processing Terms includes the Annex.
1.3 A reference to writing or written includes emails sent to the addresses specified in clause 13.
1.4 In the case of conflict or ambiguity between:
2.3 ANNEX A describes the subject matter, duration, nature and purpose of processing, the types of User Personal Data and the categories of Data Subject which the Provider may process in the course of the Customer (including its Staff) and the Parents and Guardians using the Products.
3.1 The Provider will only process the User Personal Data to the extent, and in such a manner, as is necessary to enable the Customer (including its Staff) and the Parents and Guardians to use the Products and in accordance with the Customer’s written instructions. The Provider will not process the User Personal Data for any other purpose or in a way that does not comply with these Processing Terms, unless it is required to do so by applicable law.
3.2 The Provider shall comply with any reasonable request of the Customer to amend, transfer, delete or otherwise process the User Personal Data, or to stop, mitigate or remedy any unauthorised processing.
3.3 The Provider will maintain the confidentiality of all User Personal Data and will not disclose any User Personal Data to third parties unless the Customer or these Processing Terms specifically authorises the disclosure, or as required by applicable law.
3.4 The Provider will, at the Customer’s reasonable cost, provide reasonable assistance to the Customer with meeting the Customer’s compliance obligations under the Data Protection Legislation, taking into account the nature of the Provider’s processing and the information available to the Provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
3.5 The Customer acknowledges and agrees that it has provided appropriate notices and otherwise obtained consent from each of its Staff in accordance with the Data Protection Legislation to enable the Customer and the Provider to process Personal Data relating to those Staff for the purpose of enabling the Customer (including its Staff) and the Parents and Guardians to use the Products.
3.6 Without limiting clause 2.2, the Customer acknowledges and agrees that it has approved the notice to be made available to the Parents and Guardians when they register an account with the Products pursuant to which the Customer shall: (a) inform the Parents and Guardians of the Customer’s identity, the purpose or purposes for which Personal Data relating to them and their child/children will be processed, and any other information that, having regard to the specific circumstances of the collection and expected processing, is required to enable fair processing in accordance with Data Protection Legislation; and (b) obtain their consent or other legal justification to the same. The Provider will not materially modify or alter the notice in any way without the Customer’s prior written consent, not to be unreasonably withheld.
3.7 The Customer acknowledges and agrees that nothing in these Processing Terms shall restrict the manner in which the Provider may collect, generate, store, use and/or otherwise process the Provider Personal Data. The Customer and the Provider acknowledge that for the purpose of the Data Protection Legislation, the Provider is the controller of the Provider Personal Data, the Provider retains control of the Provider Personal Data and remains responsible for compliance with its obligations under the Data Protection Legislation in relation to the same.
4.1 The Provider will ensure that those of its employees who process User Personal Data: (a) are informed of the confidential nature of the User Personal Data and are bound by confidentiality obligations and use restrictions in respect of the User Personal Data; and (b) are aware both of the Provider’s duties and their personal duties and obligations under the Data Protection Legislation and these Processing Terms.
5.1 The Provider shall implement appropriate technical and organisational measures against unauthorised or unlawful processing of User Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of User Personal Data, which shall ensure a level of security appropriate to the risk involved.
6.1 The Provider will without undue delay notify the Customer if any User Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Provider will use reasonable endeavours to restore such User Personal Data.
6.2 The Provider will as soon as reasonably possible and without undue delay notify the Customer if it becomes aware of any accidental, unauthorised or unlawful processing of the User Personal Data and/or any Personal Data Breach. In such circumstances, the Provider shall, without undue delay, provide the Customer (to the extent it is reasonably able to do so) with:
(a) a description of the nature of the accidental, unauthorised or unlawful processing of the User Personal Data and/or Personal Data Breach, including the categories and approximate number of both Data Subjects and User Personal Data records concerned;
(b) the likely consequences; and
(c) a description of the measures taken or proposed to be taken to address the same, including measures to mitigate its possible adverse effects.
6.3 The Provider will not inform any third party of any Personal Data Breach without first obtaining the Customer’s prior written consent, except when required to do so by applicable law.
6.4 The Provider agrees that, in relation to the User Personal Data, the Customer has the sole right to determine:
(a) whether to provide notice of the Personal Data Breach to any affected Data Subjects and/or Parents and Guardians, supervisory authorities, regulators, law enforcement agencies or others, as required by applicable law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected Data Subjects and/or Parents and Guardians, including the nature and extent of such remedy.
7.1 The Provider (or any subcontractor) shall not transfer or otherwise process User Personal Data outside the European Economic Area (EEA) without obtaining the Customer’s prior written consent. Notwithstanding the foregoing, the Customer hereby grants consent to the Provider transferring User Personal Data to the entities specified in Annex A and where expressly stated in Annex A, to the processing of User Personal Data by those entities outside the EEA for the purpose of providing the services to the Provider.
7.2 Where such consent is granted, the Provider may only process, or permit the processing, of User Personal Data outside the EEA under the following conditions:
(a) the Provider is processing User Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals; or
(b) the transfer otherwise complies with the Data Protection Legislation.
8.1 The Customer acknowledges that the Provider uses the subcontractors listed in Annex A in the course of enabling to the Customer (including its Staff) and the Parents and Guardians to use the Products and the Customer consents to the same. The Provider shall only appoint another third party (subcontractor) to process the User Personal Data if:
(a) the Customer is provided with a reasonable opportunity to object to the appointment of the subcontractor;
(b) the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in these Processing Terms, in particular, in relation to requiring appropriate technical and organisational data security measures;
(c) the subcontractor’s contract terminates automatically on termination of these Processing Terms for any reason.
8.2 Where the Provider fails to comply with these Processing Terms due to any act or omission of any of its subcontractors, the Provider remains fully liable to the Customer as a result of the same.
9.1 The Provider shall, at the Customer’s reasonable cost, provide reasonable assistance to the Customer in relation to the Customer’s compliance with:
(a) the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase Personal Data, object to the processing and automated processing of Personal Data, and restrict the processing of Personal Data; and
(b) information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.
9.2 The Provider shall notify the Customer if it receives: (a) any complaint, notice or communication that relates directly or indirectly to the processing of the User Personal Data or to either party’s compliance with the Data Protection Legislation; or (b) a request from a Data Subject for access to their User Personal Data or to exercise any of their related rights under the Data Protection Legislation and the Provider will at the Customer’s reasonable cost, provide reasonable co-operation and assistance in relation to the same.
9.3 The Provider shall not disclose the User Personal Data to any Data Subject or to a third party other than at the Customer’s request or instruction, as provided for in these Processing Terms or as required by applicable law.
10.1 These Processing Terms will remain in full force and effect until the later of: (a) Customer ceasing to access and use the Products; and (b) the Provider ceasing to retain any User Personal Data in its possession or control in accordance with these Processing Terms (Term).
11.1 At Customer’s reasonable cost, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.
11.2 Within a reasonable period following the Customer ceasing to access and use the Products, the Provider will securely delete or destroy or, if directed in writing by the Customer, return and not retain, all User Personal Data in its possession or control, except for one copy that it may retain and use for audit purposes only, save to the extent that the Provider is required to keep a copy of the same pursuant to any applicable law, regulation, government or regulatory body or organisation.
12.1 The Provider shall permit the Customer or its third-party representative to audit the Provider’s compliance with its obligations under these Processing Terms at any time during the Term, subject o the Customer providing no less than 30 days’ prior notice to the Provider. The Provider will provide reasonable assistance to the Customer or its third-party representative in relation to such audit.
13.1 Any notice or other communication given to a party under or in connection with these Processing Terms must be in writing and delivered, in the case of the Provider, to: Data Protection Officer at Innovation Centre, Carpenter House, Broad Quay, Bath BA1 1UD or by email to firstname.lastname@example.org and in the case of the Customer, to the name of the person within the Customer who is responsible for the access to and use of the Products by the Customer, details of which shall be provided by the Customer to the Provider during the process of subscribing to the Products.
13.2 A notice given under these Processing Terms will be valid if sent by email.
14.1 These Processing Terms and all disputes arising under it are subject to the laws of England and Wales and each of the parties submits to the exclusive jurisdiction of the courts of England and Wales.
|Duration of Processing||for the Term (as defined in clause 10.1 of these Processing Terms)|
|Nature of Processing||Processing within the Products to assist the Customer (and its Staff) in recording information relating to the children within its care and sharing that information with the parents and/or guardians of those children|
|Types of User Personal Data||Types of User Personal Data: in relation to: (i) Staff of the Customer who to use the Products, comprises the following: name, email, PACEY details, password, photo, children for whom they are the key worker; ; (ii) Parents and Guardians of children within the care of the Customer who have registered to use the Products, comprises the following: Name, contact details, address, date of birth, photo, job title, accounting information, billing information, accident information, password and information relating to device used to access the service and session information; and (iii) children within the care of the Customer, comprises the following: name, address, cultural identity, date of birth, doctor’s contact details, parent/guardian contact details, emergency contact details, gender, health details, key worker, personal preferences, photos and videos, daily diary, accidents, development targets, nutrition, register, observations, report, special needs and other information relating to the child’s learning journey|
|Categories of Data Subjects||(i) Staff of the Customer who wish to use the Products; (ii) Parents and Guardians of children within the care of the Customer who have registered to use the Products; and (iii) children within the care of the Customer|
Approved Subcontractors, all of whom process User Personal Data outside the EEA: