Terms and Conditions for Childcare Practitioners

1.   INTRODUCTION

1.1  The Kinderly application for tablets and the web-based back-end system is a platform designed for early years childcare organisations (including childminders, nannies, nurseries, kindergartens, pre-schools, reception classes or any similar early years (birth to 5 years of age) childcare facility) through which:

a. early years childcare practitioners can input information about the progress of each of the children in their care and share that information with each child’s parents (including guardians); and

b. parents of children (who have been authorised by the childcare establishment to create a parent profile) can view information uploaded by staff and monitor the development of their child remotely on a real time basis.

1.2  The Kinderly application can also be used to provide feedback and messages between parents and staff.

2.   PARTIES & ACCEPTANCE

2.1    These terms and conditions (the "Terms") set out the legal agreement between you, a childcare organisation (“Childcare 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:

a.   the use of our website at kinderly.co.uk and the services available via our website; and

b.   the provision and use of any application for tablets that Kinderly may publish from time to time whether or not in co-operation with any third party organisation and any other website or interface through which our services can be accessed,

and the above websites, applications, products and services shall collectively be referred to as the "Platform".

2.2    Please review these Terms carefully and make sure that you understand and accept them before subscribing to and/or using the Platform. If you do not agree to these Terms, you must cease use of the Platform immediately. By using the Platform, you agree to be bound by these Terms. You also agree to Kinderly's Privacy Policy and agree to Kinderly’s use of cookies set out therein.

2.3    By accepting these terms, you warrant and represent that you have the requisite authority from the Childcare Organisation to do so and to legally bind the Childcare Organisation.

2.4    Kinderly may update these Terms from time to time so please review the relevant pages regularly. Should you object to any term or condition, guideline, or subsequent changes made to the Platform then you must immediately cease use of the Platform.

3.   FREE TRIAL

3.1    Our website may offer you the ability to enter a 30-day free trial of the Platform. This is limited to one free trial per Childcare Organisation 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 Childcare Organisation which has previously utilised a free trial.

3.2    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.

3.3    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.

4.   SUBSCRIPTION

4.1    Provided you are a Childcare Organisation, you may subscribe for the Platform by following the instructions on our website (“Subscription”). You agree not to attempt to subscribe for the Platform if you are not a Childcare 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 Childcare Organisation, we reserve the right to suspend or terminate the Subscription with immediate effect and without liability to you.

4.2    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.

4.3    All monies due from you must be paid in advance and shall be non-refundable, even where the Subscription is cancelled or terminated early.

4.4    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.

4.5    If you fail to pay any fees or charges payable for your Subscription, we reserve the right to suspend your access to the Platform unless and until such fees and charges are paid in full.

5.   RENEWAL AND CANCELLATION

5.1    Subscriptions automatically renew on a monthly 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.

5.2    If you wish to cancel your Subscription, you may do so with one months advance notice by contacting us at support@kinderly.co.uk.

5.3    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.

5.4    On cancellation or termination of the Subscription, your right to use the Platform shall terminate. We may provide you with limited access to the Platform to enable you to access and export certain information from the Platform 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 Platform prior to termination of your Subscription.

5.5    We may terminate your Subscription and access to the Platform with immediate effect by giving you written notice if you:

a.   commit any material breach of these Terms and, if remediable, fail to remedy the breach within 7 days of receiving notification from us requiring you to do so;

b.   take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.

6.   THE PLATFORM

6.1    The Platform supports the EYFS framework and is compliant with applicable laws and regulations regarding the storage, collection and communication of personal data relating to children. The Platform provides password-based in-application security.

6.2    The Childcare Organisation may export information it has uploaded to the Platform as a PDF file, email and/or download the contents on to a CD to share it with parents or guardians (“Parents”) of the children in respect of which it has recorded such content.

6.3    The Childcare Organisation is fully responsible for being registered with the Information Commissioner’s Office, having appropriate data and image sharing policies in place, obtaining all necessary consents from Parents, ensuring all staff have been appropriately vetted and are continually monitored / assessed for the role they are undertaking, and for complying with its obligations under applicable laws and regulations. The Childcare Organisation agrees to indemnify Kinderly against any claims made by third parties arising out of the breach by the Childcare Organisation of applicable laws and regulations, including data protection obligations.

6.4    The Platform cannot be connected with or published to social networks or other third party applications.

6.5    We may change the nature or provision of the Platform 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 Platform involves action on your part, and you do not take that action, we are entitled to terminate provision to you without notice.

7.   CONDITIONS ON USE

7.1    You can only access, download or use the Platform either if you are a Childcare Organisation or if you have been authorised to use the Platform by a Childcare Organisation registered as a user of the Platform. If you are a Parent user, separate terms and conditions apply to your use of the Platform, available here.

7.2    Each individual using the Platform must be at least 18 years old and must be a director, officer, qualified Early Years practitioner and/or an employee of a Childcare Organisation. Prior to creating a profile on the Platform 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.

7.3    No individual may be given access to the Platform 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.

7.4    By using the Platform (or authorising an individual to use the Platform), the Childcare Organisation warrants that:

a.   the use of the Platform by the Childcare Organisation or any individual authorised by it (and the display on such person’s computer screen or mobile device of any Content on the Platform) is not unlawful in the jurisdiction in which the Platform is being accessed;

b.   the Childcare Organisation is authorised by the Parent of any child whose details it intends to enter onto the Platform or is in loco parentis with respect to such child;

c.   no individual authorised by the Childcare Organisation has been convicted of and is not pending trial for any criminal offence (other than an offence under the road traffic legislation) in any jurisdiction; and

d.   no individual authorised by the Childcare Organisation has not been and is not the subject of a restraining order in any jurisdiction.

7.5    As a condition of your use of the Platform you agree that you will not:

a.   violate any laws;

b.   post any threatening, abusive, defamatory, obscene or indecent material;

c.   be false or misleading;

d.   infringe any third-party rights (including intellectual property rights);

e.   distribute or contain spam, chain letters, or pyramid schemes;

f.    distribute viruses or any other technologies that may harm the Platform or the interests or property of Platform users;

g.   impose an unreasonable load on our infrastructure or interfere with the proper working of the Platform;

h.   copy, modify, or distribute any other person's content without their consent;

i.    use any robot spider, scraper or other automated means to access the Platform and collect Content for any purpose without our express written permission;

j.    harvest or otherwise collect information about others, including email addresses, without their consent;

k.   bypass measures used to prevent or restrict access to the Platform;

l.    collect personal data about other users for commercial or unlawful purposes;

m.  use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Platform; or

n.   attempt to gain unauthorized access to the Platform's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Platform.

8.   KINDERLY RIGHTS

8.1    In providing you with access to the Platform, Kinderly reserves all rights not specifically granted by these Terms, including the following rights, and in accessing, browsing or otherwise using the Platform you grant to Kinderly and agree that Kinderly shall have the following rights:

a.   the right to refuse or withdraw your access to the Platform in accordance with these Terms or applicable laws for any reason at any time (with or without notice), including if in Kinderly’s sole and absolute discretion you violate or breach any of these Terms;

b.   the right (but not the obligation) without notice to remove Content, materials or user accounts for any reason whatsoever in Kinderly’s sole and absolute discretion, including without limitation Content and materials which infringe these Terms, and user accounts used to propagate any such Content or materials;

c.   the right to access any or all of your accounts in order to respond to your requests for technical support so long as we maintain appropriate administrative physical and technical safeguards for the protection of the security and confidentiality and integrity of your data;

d.   the right to terminate without notice user accounts and delete any associated data if that account has been inactive or disabled for ninety (90) days or more; and

e.   the right to report you to the police or other judicial body if Kinderly believes in its sole and absolute discretion that your conduct (whether in using the Platform or otherwise) is unlawful or threatens the welfare of any user of the Platform or any member of Kinderly’s staff.

9.   CONTENT

9.1    You hereby represent and warrant that in respect of any messages, comments, files, images, photos, videos and all other materials ("Content") uploaded to the Platform and/or transmitted to any member via the Platform by you that:

a.   you have the right to publish such Content (whether by virtue of ownership of the intellectual property rights in such Content or as a result of the grant to you of a license to use and publish such Content);

b.   the publication of such Content on the Platform is not likely to bring the reputation of Kinderly into disrepute;

c.   such Content:

i. is not illegal in the UK or in any jurisdiction in which such Content might reasonably be expected to be viewed and does not promote any illegal activity

ii. does not promote terrorism or assist any person in committing or procuring the commitment of any act of terrorism;

iii.  is not in breach of OFSTED rules or guidelines in force from time to time;

iv. does not encourage or promote any political cause or affiliation;

v. is not of a pornographic, sexually explicit, violent, offensive or obscene nature;

vi. does not promote racism, bigotry, hatred or physical harm of any kind against any person or group of persons;

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;

ix. does not promote or relate to any pyramid scheme, contest, lottery, sweepstake, or barter activity; and

x. is not likely to lead a viewer to assume that you are related to, authorised by or otherwise represent Nursery Book.

9.2    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.

9.3    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 Platform and/or transmitted by you to any other user via the Platform. 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 Platform 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.

9.4    You understand that:

a.   all Content posted on, transmitted through, or linked from the Platform, is the sole responsibility of the person from whom such Content originated;

b.   Kinderly does not control and is not responsible for Content made available through the Platform;

c.   the Platform and Content available through the Platform may contain links to websites, which are completely unrelated to Kinderly. Kinderly makes no representation or guarantee as to the accuracy or authenticity of the information contained in any such Platform. Linking to any other website is entirely at your own risk;

d.   you must evaluate and bear all risks associated with the use of any Content; and

e.   under no circumstances will Kinderly be liable in any way for Content or for any loss or damage of any kind incurred as a result of the use of any Content listed, emailed or otherwise made available via the Platform.

9.5    You undertake not to share any Content relating to a child to anyone other the children’s Parents. 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.

10. INTELLECTUAL PROPERTY

10.1  Kinderly and/or its licensor(s) are the sole owners of the Platform, which includes any software, domains, design, text, graphics and all software and source code connected with the Platform other than Content belonging to you as set out in more detail below. Kinderly grants you a limited licence to use the Platform solely as set out in these Terms. The Platform is 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 Platform (or any part of it) or any material provided through the Platform without Kinderly’s prior express written consent.

10.2  Any unauthorised use of the Platform 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 Platform.

10.3  Kinderly and its graphics, logos, icons and service names related to the Platform 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 Platform are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by Kinderly.

10.4  Any Content uploaded by you shall at all times belong to you. When you upload any Content to the Platform you grant Kinderly a 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 the Platform. 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.

11. SECURITY

11.1  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 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.

12. ELECTRONIC COMMUNICATIONS

12.1  By downloading and/or using the Platform and/or material provided through the Platform, 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.

13. DISCLAIMER AND LIABILITY

13.1  Kinderly provides the Platform "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 Platform; any failures, delays or interruptions in the Platform; any losses or damages arising from the use of the Platform; or any conduct by users of the Platform, except to the extent required by law.

13.2  Kinderly shall not be liable in the event that any defect or otherwise in the Platform results in you losing or being unable to access (whether temporarily or permanently) any Content.

13.3  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 Platform or these Terms, on any theory of liability (including contract, tort, negligence, or otherwise), and whether or not advised of the possibility of damage.

13.4  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.

13.5  You acknowledge and agree that Kinderly is not responsible for the accuracy of any information published on the Platform by users and does not warrant that any information appearing on the Platform is accurate, true or complete.

13.6  From time to time you may use or access services, promotions and platforms 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.

13.7  Subject to all of the foregoing, Kinderly’s total liability to you in respect of your Subscription and use of the Platform 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.

14. INDEMNITY

14.1  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 Platform or your violation of any law or the rights of any third party. In particular, 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 on a child or allowing any tablet or Content to be connected to a social network with the result that any Content becomes available to any person other than an employee or contractor of the Childcare Organisation or the parent(s) or guardian of any child.

15. DISPUTES

15.1  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 Platform, 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.

16. GENERAL

16.1  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.

16.2  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.

16.3  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.

16.4  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.

16.5  These Terms set forth the entire understanding and agreement between you and Kinderly with respect to the subject matter hereof.

17. CONTACT

17.1  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 support@kinderly.co.uk.

18. LAST UPDATE

18.1  This document was last updated 25 July 2017.