KIDDO USER AGREEMENT
USER AGREEMENT
- AGREEMENT TERMS
This Agreement sets out UWA’s terms for granting the User access to use the Software. UWA’s General Conditions are attached and also form part of this Agreement. If there are any inconsistencies between the parts of the Agreement, the order of priority is:
- these Agreement Details;
- any approved Special Conditions in these Agreement Details; and
- the General Conditions.
By clicking on the Agree button where indicated, the parties agree to be bound by this Agreement.
- SOFTWARE
The KIDDO website is an online physical literacy educational resource that includes skill and activity information, programming and parent resources, lesson plans, programs, a personalized parent hub and online movement assessment tool that is a validated movement assessment that allows teachers and schools to quickly and easily assess and report on children’s fundamental movement skill development and benchmark their skill development against children of the same age. For early childhood education and care services it includes a milestone tracking resource allowing educators to document the physical
- SPECIFIED PURPOSE
To provide schools and early childhood education and care services and their staff with high quality educational, teaching, learning and assessment tools that enable them to deliver a program that encourages the development of physical literacy in children. To provide schools and early childhood education and care services an effective means of sharing their educational, teaching and learning programs and the children’s milestone development and assessment results and progress with parents and encourage them to engage in active play and physical activity with their children at home.
- COMMENCEMENT DATE
The commencement date is the date of purchase.
- SPECIAL CONDITIONS
The User is responsible for gaining all the necessary consents and permissions for the information they enter in this Software. Where this information is personal information, then the User is responsible for ensuring appropriate notice has been given to the individual, or a person responsible for that individual where they cannot provide consent.
GENERAL CONDITIONS
1 Definitions
Annual Subscription Fee means the amount payable by a User for the Software subscription pursuant to this Agreement.
Commencement Date means the date the User signs up for the Initial Term, notwithstanding whether they have paid for the Software at the point of signing up;
Confidential Information means the trade secrets and all other information regarding the affairs of the party which become known to the other party in circumstances where the other party knows or ought to know that the information is to be treated as confidential;
Data Protections laws shall mean, but not limited to, the Privacy Act 1988 (Cth), any Australian State or Territory privacy act, and the European General Data Protection Regulation 2016/679, and the UK Data Protection Act 2018 (incorporating the UK GDPR);
GST means a New Tax System (Goods & Services) Act 1999 and the expressions “GST”, “input tax credit”, “taxable supply” and “tax invoice” have the meanings which they bear in the GST Act;
Health Information means the same as defined in the Privacy Act 1988 (Cth);
Internal Data Transfer Agreement means the agreement issued by the UK Information Commissioners office on the 21 March 2022 vA1.0;
Initial Term means the period of 1 year commencing on the Commencement Date;
Free Trial means the access by the User of the Software for a trial period.
Free Trial Term means the period of 30 days commencing on the date the User signs up for the Free Trial;
Intellectual Property means intellectual property of any description, including but not limited to, all inventions, designs, information, specifications, formulae, improvements, discoveries, know-how, data, processes, methods, techniques and the intellectual property rights therein, including but not limited to, patents, copyrights, database rights, design rights (registered and unregistered), trademarks, trade names and service marks, and applications for any of the above, whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions;
Subsequent Term means subsequent periods each of 1 year commencing the day after the Initial Term expires and every year after that until this Agreement is terminated;
Personal information means the same as defined in the Privacy Act 1988 (Cth)
Software means the KIDDO website software, as further described in Item 2 of the Agreement Details;
Special Conditions means any variations, exclusions or additions to these General Conditions as set out at Item 5 of the Agreement Details;
Specified Purpose means the purpose set out at Item 3 of the Agreement Details; and
Standard Contractual Clauses means the defined standard clauses for us in agreement for data transfers issued by the European Commission on the 4 June 2021
Term means the Free Trial Term, Initial Term and Subsequent Term (as applicable)
2 Term and Extension
2.1 If the User signs up for a Free Trial, this Agreement will commence on the date the User signs up for the Free Trial and continue for the Free Trial Term, at which time it will automatically terminate.
2.2 If the User signs up for the Initial Term, this Agreement will commence on the Commencement Date and will continue for the Term unless:
(a) the User chooses to renew their subscription for another 12 months and pays the renewal fee, in which case the Agreement will continue until the end of the Subsequent Term; or
(b) this Agreement is terminated in accordance with clause 17.
3 Relationship between the Parties
The parties enter into this Agreement as independent contractors. This Agreement does not create a partnership, joint venture or relationship of principal and agent between the parties.
4 Access and licence
4.1 By accessing the website and paying the Annual Subscription Fee, the User accepts the terms and conditions set out in this Agreement.
4.2 Subject to receipt of the Annual Subscription Fee (if applicable), UWA grants to the User for the Term a non-exclusive, Territory wide, licence to use the Software for the Specified Purpose on the terms set out in this Agreement.
4.3 The User acknowledges that the agreement does not include provision of any training, software support, maintenance or enhancement work to the User in relation to the Software.
4.4 The licence in Clause 4 may only be used by authorised officers, employees, contractors or agents of the User.
5 Fees (if applicable)
(a) the Initial Term on the Commencement Date or as soon as reasonably practicable thereafter; and
(b) each Subsequent Term annually on the anniversary of the Commencement Date or as soon as reasonably practicable thereafter.
5.2 The User must pay all subscription fees under Clause 5.1to UWA within 30 days of the date of the relevant invoice.
5.3 UWA may, at its discretion increase the Annual Subscription Fee payable for each Subsequent Term by providing written notice to the User at least 45 days before the anniversary of the Commencement Date. By continuing to access the Software after this time, the User thereby agrees to such increase in the Annual Subscription Fee.
5.4 For the avoidance of doubt, other than the Annual Subscription Fee, the User will not be required to pay any additional fees during the Term of this Agreement.
5.5 If the User is in arrears in any Annual Subscription Fee due to UWA under this Agreement, UWA may:
(a) charge the User, and the User shall pay, in addition to the arrears, interest at the Reserve Bank’s official cash rate (”Rate”) plus 5% per cent per annum over the Rate on all arrears for each day during which the default continues; and
(b) suspend the User’s access to the Software, without prejudice to its other legal rights, until payment of the Fee is received.
5.6 The consideration for each taxable supply under this Agreement is exclusive of GST. The party making a taxable supply under this Agreement must issue a tax invoice and any relevant adjustment note to the recipient for that taxable supply.
5.7 The User must pay the cost of all taxes, levies and duties of any nature whatsoever required in respect of this Agreement.
6 User’s Obligations
The User must not:
(a) copy, share or use the educational materials and resources that form part of the Software for any purpose other than the Specified Purpose;
(b) reverse engineer, decompile or disassemble the Software;
(c) other than as permitted under this Agreement, rent lease or hire out the Software or make it available to any third party; or
(d) use the Software other than as expressly permitted by this Agreement.
7 Intellectual Property
7.1 All Intellectual Property rights in the Software belong to UWA.
7.2 UWA grants to the User a royalty free, non-exclusive licence to use the Intellectual Property in the Software solely for the purpose of accessing the Software in accordance with this Agreement until this Agreement is terminated.
7.3 The User grants to UWA a perpetual, royalty free, non- exclusive licence to use its Intellectual Property and any data inputted into the Software for its own research and educational purposes.
8 No Transfer or Assignment
8.1 The User must not transfer or assign this Agreement.
8.2 The User is not permitted to grant any sub- licences to the Software.
9 Warranties
9.1 The User warrants that:
(a) it has authority to enter and to perform its obligations under this Agreement;
(b) it is authorised by all necessary government and other agencies and authorities to perform its obligations under this agreement and will continue to be authorised to perform this Agreement; and
(c) to the best of its knowledge at the time of entering this Agreement that its Intellectual Property does not infringe the Intellectual Property rights of any third party.
9.2 The User warrants that it has obtained all necessary consents and permissions to enter the information it enters onto the Software, has provided all necessary notices to those individuals to which the data relates and has obtained all approvals from individuals in respect of any Personal Information which it inputs onto the Software, and that doing so will not infringe the rights of any third party.
9.3 Each party acknowledges that:
(a) to the extent permitted by law, except as otherwise set out in this agreement, UWA makes no warranties in relation to the Software;
(b) to the extent permitted by law, UWA makes no representations or warranties regarding the merchantability or fitness of the Software for any particular purpose; and
(c) UWA has not made nor has any person on behalf of UWA made any term, warranty, undertaking or understanding that is not expressly set out in this agreement.
10 Exclusions
Subject to clauses (c), 10.3 and 12, each party acknowledges that UWA’s liability, whether in breach of contract, negligence or otherwise, in any way connected with this Agreement or the Software, is:
(a) excluded, insofar as liability for loss of profits, loss of revenue, loss of goodwill and for special, indirect, consequential and punitive damages are concerned; and
(b) limited for all claims in aggregate to the Annual Subscription Fee paid in relation to the Initial Term or $5,000AUD, whichever is the lesser.
11 Legislative Restrictions
11.1 Where legislation implies into this Agreement any condition or warranty, and that legislation prohibits a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this agreement. The liability of UWA for any breach of any such condition or warranty shall be limited to the replacement of the Software.
12 Indemnity
12.1 The User acknowledges that it uses the Software and any results of the Software at its own risk.
12.2 The User will at all times indemnify and keep indemnified UWA its officers, employees and agents (in this Clause referred to as "those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of, in connection with or in respect of:
(a) any use of the Software by the User authorised officers, employees, contractors or agents; and
(b) any breach of this Agreement by the User or its authorised officers, employees, contractors or agents.
13 Software Updates
The User is not entitled to any Software improvements or updates by UWA under this Agreement but may enter into further negotiations with UWA to obtain the improvements.
14 User Responsibility for Personnel
The User must ensure that its officers, employees, agents, contractors and persons authorized to use or access the Software comply with the terms of this Agreement.
15 Confidentiality and Privacy
15.1 All Confidential Information provided by one party to the other party and marked confidential must be treated as confidential and only used for the purposes of this Agreement, unless the disclosing party provides prior written consent to disclosure to third parties.
15.2 UWA may disclose such Confidential Information to its employees and agents as strictly necessary to carry out its obligations under this Agreement provided that such employees and agents are required to keep that information confidential in accordance with this clause.
15.3 Neither party shall use the name or logo of the other party without the prior written permission of the other party.
15.4 The parties will comply with the UWA Information Privacy policy and Australian Privacy Principles with respect to any personal and/or health information collected or used in connection with this Agreement.
15.5 Each party acknowledges that, when and to the extent applicable, it will comply with the relevant Data Protection laws.
(a) In such circumstances where required under data protection laws for the avoidance of doubt it will be noted that UWA will be a data processor, and the licensee will be a Data Controller
(b) Where data is being collected from within the EEA and/or UK, then the parties will undertake to complete either the Standard Contractual Clauses or International Data Transfer Agreement, as applicable, which will form part of this Agreement.
15.6 UWA (including its staff and students) may:
(a) use the information provided by the User and inputted into the Software, data stored in the Software for research and educational purposes, provided that it does not disclose the User’s Confidential Information;
(b) freely publish technical or scholarly articles, make oral publications and publish theses in relation to data obtained from the Software provided that the publication does not disclose the User’s Confidential Information or contain identifiable personal and/or health information, in accordance with UWA ethics review and approval procedures. More information on use of data for research can be found HERE
15.7 Copyright in any publication remains with the author of that publication.
16 Termination
16.1 A party may terminate this Agreement immediately on written notice to the other party, if:
(a) the other party materially breaches this Agreement, or breaches any clause of this Agreement and such breach is not remedied within 14 days of written notice of the breach; or
(b) the other party goes insolvent or conducts itself in a manner which, in the party’s opinion (acting reasonably) has or is likely to have a material adverse effect on the terminating party’s name, reputation or business.
17 Effect of Termination
17.1 The parties agree that upon termination of this Agreement, the User:
(a) is no longer licensed to use the Software;
(b) will not use, and will ensure that it’s officers, employees, contractors or agents do not use, the Software;
(c) must remove all copies of the Software from the Licensee’s systems if applicable;
(d) must destroy all copies of the Software or data obtained from the software if applicable, save that it may keep 1 copy for its lawful record keeping purposes; and
(e) May, within 30 days of termination request that UWA destroys data obtained from the system from the User, subject to UWA can complying with its lawful record keeping obligations.
17.3 Clause 17.2 does not apply if:
(a) the Agreement is terminated for convenience by UWA under clause 16.2; and
(b) the User has not caused or contributed to UWA’s decision to terminate.
In that case, UWA shall refund the unused portion of the Annual Subscription Fee paid in respect to the current year on a pro- rata basis.
18 Survival of Clauses
Notwithstanding any other clause in this Agreement, clauses 3, 15 and 17 are continuing obligations and survive the expiration or termination of this Agreement.
19 Assignment, subcontracting by User
The benefit of this Agreement shall not be dealt with by the User, whether by assignment, sub-contracting, sub-licensing or otherwise.
20 Assignment, subcontracting by UWA
UWA may assign, sub-licence, sub-contract all or part of the performance of this Agreement.
21 Waiver
21.1 No right under this Agreement shall be deemed to be waived by a party except if such waiver is in writing signed by the party alleged to have waived the right.
21.2 A waiver by a party pursuant to clause 22.1 will not prejudice its rights in respect of any subsequent breach of this Agreement by the other party.
21.3 Subject to clause 22.2 any failure by a party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by a party to the other shall not be construed as a waiver of the first-mentioned party’s rights under this Agreement.
22 Entire agreement
This Agreement constitutes the entire agreement between the parties for the provision of Services by UWA to the User. Any prior arrangements, agreements, representations or undertakings are superseded. Any modification or alteration of any clause of this Agreement will not be valid except in writing signed by each party.
23 Severability
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.
24 Governing law
This Agreement will be governed by and construed according to the law of Western Australia and the parties
25 Notices
Any notice, approval, consent or other communication under this Agreement will be in writing and delivered personally or given by prepaid registered post or by electronic mail to a party to the address on signing up for the software.
26 Disputes
If any dispute arises between the parties in connection with this Agreement, they agree to negotiate in good faith and to use their best endeavours to resolve the dispute before resorting to the courts. Notwithstanding the existence of a dispute the parties shall continue to perform their obligations under this Agreement.
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