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, 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, 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. Whilst Kinderly will endeavour to notify you of any significant changes it makes to these Terms, by continuing to use the Platform you automatically agree to any updated version of the Terms from the time they are uploaded to the Platform. Therefore please review the relevant pages on the Platform regularly. Should you object to any term or condition, guideline, or subsequent changes made to these Terms and/or 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 complying with all applicable data protection and privacy laws in relation to its use of the Platform and any use of the Platform 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 Childcare Organisation in relation to the same in more detail.

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 has obtained all appropriate consents from the Parent or guardian of any child whose details it intends to enter onto the Platform;

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   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 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 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.

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. 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 Childcare Organisation or the parent(s) or guardian of such 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 May 17th 2018.

 

ADDENDUM

DATA PROCESSING TERMS

These Data Processing Terms (referred to as “Processing Terms”) form part of the Terms of Use and apply to any processing of User Personal Data (as defined in clause 1 below) by Nursery Book Limited (trading as Kinderly), a company incorporated and registered in England and Wales with company number 08632404 whose registered office is at Innovation Centre Carpenter House, Broad Quay, Bath, United Kingdom, BA1 1UD (Provider) on behalf of a childcare setting (referred to in these terms as the “Customer”) who wishes to use, and to enable its Staff, Parents and Guardians (as defined below) to use the Platform (as defined below). By subscribing to and/or using the Platform, the Customer acknowledges and agrees that it has read, understood and agrees to these Processing Terms.
AGREED TERMS
1. Definitions and interpretation
The following definitions and rules of interpretation apply in these Processing Terms.

1.1 Definitions:

  • User Personal Data: means any Personal Data that is provided to the Provider through the Platform by the Customer, any of its Staff, Parents and/or Guardians and which is processed by the Provider in the course of enabling the Customer (including its Staff) and/or its Parents and Guardians to use the Platform.
  • Data Protection Legislation: all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
  • Data Subject: an individual who is the subject of User Personal Data.
  • Parents and Guardians: those parents and/or guardians of children within the care of the Customer from time to time who have registered to use the Platform.
  • Personal Data: means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
  • Platform: means the Provider’s website, application for tablets and its web-based back end system and the services provided through it which are designed for early years childcare practitioners through which: (a) childcare practitioners and/or their Staff can upload information about the progress of each child within their care and share that information with such child’s parents and/or guardians; and (b) parents and/or guardians of children within the care of the childcare practitioner can view information relating to their child which is uploaded by Staff of the Customer and monitor the development of their child remotely on a real time basis.
  • Processing, processes and process: as defined in the Data Protection Legislation and includes any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording. organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties.
  • Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, User Personal Data.
  • Privacy Policy: Provider’s standard privacy policy which sets out in more detail the ways in which the Provider collects, stores, uses and/or otherwise processes Personal Data in the course of making available the Platform.
  • Provider Personal Data: means any Personal Data which is collected by the Provider through the Platform from the Customer, any of its Staff, Parents and/or Guardians and/or otherwise generated by the Provider and which is processed by the Provider for a purpose other than to enable the Customer (including its Staff) and its Parents and Guardians to use the Platform.
  • Staff: means any employees, agents, consultants and/or contractors of the Customer from time to time.
  • Terms of Use: Provider’s standard terms of use which apply to the use of the Platform by any childcare practitioners and the parents and guardians of children within their care, to which these Processing Terms are annexed.

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:

a) any provision contained in the body of these Processing Terms and any provision contained in the Annex, the provision in the body of these Processing Terms will prevail;

b) any of the provisions of these Processing Terms and the provisions of the Terms of Use or Privacy Policy, these Processing Terms will prevail.

2. Personal data types and processing purposes

2.1 The Customer and the Provider acknowledge that for the purpose of the Data Protection Legislation, the Customer is the controller and the Provider is the processor of the User Personal Data.The Customer retains control of the User Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation and for the processing instructions it gives to the Provider. Without limiting the foregoing, the Customer warrants and represents that it shall provide any required notices to its Staff and to the Parents or Guardians and obtain any required consents or other legal justifications from each of its Staff and those Parents or Guardians, so as to enable the Provider to process the User Personal Data in accordance with these Processing Terms and the Terms of Use and the Customer shall indemnify the Provider in full and on demand from any loss, damage, costs, penalties, fines or expenses (whether arising in contract, tort or otherwise and whether direct, indirect or consequential) incurred by the Provider in relation to any failure by the Customer to do so.

2.2 The Customer retains control of the User Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation and for the processing instructions it gives to the Provider. Without limiting the foregoing, the Customer warrants and represents that it shall provide any required notices to its Staff and to the Parents or Guardians and obtain any required consents or other legal justifications from each of its Staff and those Parents or Guardians, so as to enable the Provider to process the User Personal Data in accordance with these Processing Terms and the Terms of Use and the Customer shall indemnify the Provider in full and on demand from any loss, damage, costs, penalties, fines or expenses (whether arising in contract, tort or otherwise and whether direct, indirect or consequential) incurred by the Provider in relation to any failure by the Customer to do so.

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 Platform.

3. Provider's rights and obligations

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 Platform 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 Platform.

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 Platform 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. Provider's employees

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. Security

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. Personal Data Breach

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.

6.5 The Customer shall reimburse all reasonable expenses incurred by the Provider in complying with its obligations in this clause 6, to the extent arising from the Customer's or any of its Staff’s or any of the Parents and Guardians specific instructions, negligence, wilful default or breach of these Processing Terms or the Terms of use.

7. Cross-border transfers of personal data

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. Subcontractors

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 Platform 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 the 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. Complaints, data subject requests and third party rights

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. Term and termination

10.1 These Processing Terms will remain in full force and effect until the later of: (a) Customer ceasing to access and use the Platform; and (b) the Provider ceasing to retain any User Personal Data in its possession or control in accordance with these Processing Terms (Term).

11. Data return and destruction

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 Platform, 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. Audit

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. At least once a year, the Provider will conduct site audits of its Personal Data processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under these Processing Terms. Notice

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 support@kinderly.co.uk 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 Platform by the Customer, details of which shall be provided by the Customer to the Provider during the process of subscribing to the Platform.

13.2 A notice given under these Processing Terms will be valid if sent by email.

 14. Governing Law and Jurisdiction

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.

15. Variation

15.1 We may vary these Processing Terms from time to time in accordance with the terms for variations set out in the Terms of Use.

  •  ANNEX A -  Details relating to the processing of User Personal Data
Subject matter of processing Personal Data relating to the Customer (including its Staff) and the Parents and Guardians to enable the Customer (including its Staff) and its Parents and Guardians to use the Platform in accordance with the Terms of Use
Duration of Processing for the Term (as defined in clause 10.1 of these Processing Terms)
Nature of Processing Processing within the Platform 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
Processing such processing as is necessary to enable the Provider to make available the Platform (including all services comprising the Platform) to the Customer (including its Staff) and its Parents and Guardians in accordance with the Terms of Use
Types of User Personal Data Types of User Personal Data: in relation to: (i) Staff of the Customer who   to use the Platform, 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 Platform, 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 Platform; (ii) Parents and Guardians of children within the care of the Customer who have registered to use the Platform; and (iii) children within the care of the Customer
  Approved Subcontractors, all of whom process User Personal Data outside the EEA:
  • Rackspace Ltd of Unit 5 Millington Road, Hyde Park Hayes, Middlesex, UB3 4AZ
https://www.rackspace.com/information/legal/privacystatement
  • Stripe Payments UK Limited of 9th Floor, 107 Cheapside, London, EC2V 6DN
https://stripe.com/gb/privacy
  • Intercom R&D Unlimited Company, an Irish company with offices at 2nd Floor, Stephen Court, 18-21 St. Stephen's Green, Dublin 2, Republic of Ireland
https://docs.intercom.com/pricing-privacy-and-terms/privacy/intercom-inc-privacy-policy
  • Mailgun Techologies Inc of 535 Mission St San Fransisco, CA 94105
https: www.mailgun.com/privacy policy
  • Xero (UK) Limited of Bank House, 171 Midsummer Boulevard, Milton Keynes, MK9 1EB https://www.xero.com/uk/about/terms/privacy/