Terms & Conditions Nrichkid (Provider)
Terms and Conditions Provider
1.1 Purpose of this document
This document sets out the terms of service of our applications and online properties in so far as they relate to providers.
You accept the terms in this document by completing the provider registration process.
1.3 Defined Terms etc
Italicised words in this Agreement and the rules for interpreting this document are set out in the definitions and interpretation section at the end of this document.
1.4 Other documents which contain rights and obligations
These terms apply to all of our providers, whether they use our basic free services only, or also pay for additional services. However, if you pay for additional services, then further terms and conditions will apply to our relationship with you.
2 The Extent of our Obligations to You
2.1 The Purpose of our applications and Online Properties
Our applications and online properties are designed to enable providers of kids’ events and activities to advertise their services to their target markets.
Some of our services are provided free of charge, while others are provided in return for payment. Our obligations in relation to paid services are higher than those in relation to free services, and are governed by terms set out in other documents.
2.2 What we Promise to do
We agree to provide you with access to the advertising features and functions on the website and the applications from time to time on the terms set out in this document.
2.3 What we do not Promise to do
We have no obligation to do anything unless expressly provided by these Terms or required by law. In particular, we have no obligation to:
- continue the operation of the applications and online properties in part or in whole beyond the period of this agreement;
- deliver any particular level of views by end users or custom to your business;
- offer particular features or functions either now or in the future;
- make the data stored in our backups available to you; or
- moderate content before it is uploaded by our users.
3.1 Initial Period
This Agreement commences on the date upon which you successfully complete the Provider registration process, and runs for one month from that date.
3.2 Automatic Renewals
This Agreement renews automatically for successive monthly terms until it is terminated as specified in Clause 3.3 or 3.4 below.
Either Party may terminate this Agreement by giving notice in writing to the other.
You may also terminate this Agreement by logging into the ‘Provider Portal’ section of the website and deleting your account.
We may terminate this Agreement immediately if you breach Clause 5 or Clause 7.
4 Your membership
4.1 Eligibility to be a Provider
To become a Provider, you must:
- offer at least one activity or event that is suitable for children; and
- have a current and valid Australian Business Number (ABN).
4.2 Your Obligations when registering as a Provider
When registering as a Provider, you must not –
- use any name for your business other than the legal name, or the registered business name of your business;
- provide any false information to us; or
- create or attempt to register an account for any person who has been suspended or barred from using our services due to a breach of these Terms (or any earlier version of these Terms).
4.3 Your Rights as a Provider
Upon successful registration as a Provider, we grant you a revocable, non-exclusive license and right to:
- access the Provider Portal Section of the website using a generally available web browser as approved by us from time to time; and
- communicate Provider’s Content created or approved by you through the website and each application;
for legitimate business and professional purposes in accordance with these Terms.
4.4 Features and functions associated with Free Listings
As a Provider with a free account, we allow you to create and maintain a listing that is capable of displaying the following on the website and upon each application:
- the name of your business;
- the logo associated with your business;
- the address of your business;
- your opening hours;
- basic details of up to 3 programs that are offered by you; and
- the category and one or more sub-categories for your service offerings.
4.5 Your Acknowledgement regarding Free Listings
You acknowledge that the free listings may not have the prominence, level of detail, or the same features and functions of paid accounts.
5.1 Basic Obligation Regarding currency, Accuracy, Etc
You must ensure that all Provider Content communicated by you is complete, accurate, and current at all times during the Agreement Period.
5.2 Representation and Guarantee Regarding your Provider Content
When submitting, uploading or otherwise communicating any Provider Content, you represent and guarantee to us that:
- you have the legal right to use, display, copy, modify, adapt, reproduce, display and distribute that Provider Content; and
- the relevant Provider Content otherwise conforms with the requirements of these Terms.
5.3 Content Created by us
We may create content about your business which we display on the website or any application, we will mark that content as belonging to an ‘unclaimed profile’.
If you later successfully complete the registration process as discussed in Clause 1.2 above, then:
- you must promptly review the content created about your business, and ensure that it meets the requirements of this Clause 5; and
- we will remove the ‘unclaimed profile’ notice from your listing.
5.4 Prohibition of Unlawful Content
You must not communicate any Provider Content which is unlawful, including:
- promotes a terrorist or other criminal activity;
- promotes goods and services that cannot be sold by law either generally, or to children particularly (e.g. alcohol);
- promotes any goods or services in a way that is prohibited by law;
- violates the rights of privacy of any person;
- would be regarded as spam (i.e. unsolicited commercial messages);
- defames any person;
- vilifies, offends, insults or humiliates another person based upon his or her race, religion, ethnicity, sex, gender, gender identity, age, sexual orientation, physical characteristics, or disability;
- amounts to unlawful discrimination, including discrimination on the basis of a person’s race, religion, ethnicity, sex, gender, gender identity, age, sexual orientation, physical characteristics, or disability;
- involves you engaging in conduct that is misleading and deceptive, or likely to mislead or deceive;
- involves you making false or misleading representations about goods or services or anything else; or
- infringes the intellectual property rights of any person.
5.5 Prohibition of Inappropriate content
You must not communicate any Provider Content which, although not illegal:
- is rude or offensive, or otherwise makes a personal attack of any kind upon any person;
- is vulgar or profane;
- bullies, intimidates or harasses any person;
- portrays or contains nudity;
- portrays or contains sexually explicit language or images, or promotes any business in the sex industry; or
- portrays or contains graphic or gratuitous violence.
6 Complaints about End User Content
6.1 User Reviews
We allow end users to create and publish ‘End User Content’, which may include ratings and reviews of your business, and the services which you provide.
6.2 Responsibility for Content posted by our users
Although we impose contractual requirements on our end-users to provide honest, fair and accurate reviews and ratings, you acknowledge that:
- you may not be happy with their reviews or ratings;
- you may not agree with their reviews or ratings;
- it is in the interests of our user base for users to be able to share and read legitimate ratings and reviews;
- although we do review user ratings or reviews for obvious breaches of our terms before they are published, the views expressed in user ratings and reviews are not our views, and we are not responsible for their accuracy, completeness, or reliability.
6.3 Our Right to take action
Notwithstanding anything above, we have the right to take action with respect to particular user ratings or reviews if those reviews or ratings do not comply with their contractual requirements with us.
If you believe that any End User Content is inappropriate, you may make a formal complaint to us. The formal complaint must –
- be in writing and in English;
- precisely and accurately identify the grounds of your complaint, providing samples or extracts where possible;
- precisely and accurately locate the content which allegedly infringes your legal rights;
- advise us of your physical address, telephone number and email address;
- include a sworn statement under penalty of perjury that the information you have provided is accurate, and that you have a good faith belief that content in question infringes your rights;
- be submitted using the ‘Report Abuse’ button at the bottom of at least one of the relevant pages on the website.
6.5 Our Undertakings Upon receipt of a Complaint from you
If we receive a formal complaint from you pursuant to Clause 6.4, then we must promptly:
- provide your complaint to the end user;
- invite the relevant end user to respond in writing to the complaint;
- provide the end user’s response to you;
- conduct our own enquiries regarding the subject matter of the complaint;
- consider the complaint and any responses received in good faith;
- take such actions (if any) that we deem to be appropriate in our absolute discretion, including taking down the relevant content in whole or in part, requiring it to be modified.
A delay or failure to take down, or modify the above actions does not constitute endorsement of, or adoption of the relevant End User Content by us in any way.
7.1 Basic Obligations
You must only use our applications or online properties for legitimate professional and business purposes and activities.
You must not use our applications or our online properties for any purpose of activity which could reasonably be expected to breach any of your obligations under this Clause 7.
You must not use any of our applications or our online properties to assist you to breach any law, or to carry out any unlawful purpose.
7.3 Unauthorised Use or Access
You must not do, or attempt to do, any of the following:
- harvest or collect content (including by automated means such as script robots, spiders, scrapers, or hardware devices) to view, download, scrape, or submit content without our prior written permission;
- probe or test the vulnerability of our systems;
- reverse engineer, decompile or otherwise attempt to derive the source code for any application or the website or any part of those;
- alter or attempt to alter any content not belonging to you without the permission of the owner or licensee of that content;
- gain access, or attempt to gain access, to any password protected user account of the application or the website which is not intended for use by you; or
- gain access, or attempt to gain access, to any non-public data or software code stored on the servers used by us or on our behalf.
8 Provision of your Services to the End Users
If the end users of our applications or our website choose to engage you to perform services to them or to their children, then you provide those services directly to them in your capacity as an independent contractor, and not as our agent, or subcontractor.
8.2 Responsibility When delivering your services
You acknowledge that you are responsible for all aspects of the service provided to our end users, including the enjoyment. In this regard, you must ensure:
- the physical and emotional safety of the end users or their children;
- that you provide your services in a way that is consistent with any statements or representations made in your Provider Content; and
- comply with all laws applicable to the delivery of your services.
9 Intellectual Property
If you submit or upload Provider Content owned by you to the website or to any application, you continue to own that content after posting it.
If you submit or upload Provider Content owned by you to the website or to any application, you grant us a licence to –
- reproduce; and
- communicate to the public;
that Provider Content in accordance with these Terms. This licence is referred to in these Terms as the ‘Provider Content Licence’. The Provider Content Licence is:
- royalty-free; and
9.3 Terminating the Provider Content Licence
Subject to the exceptions listed below –
- you terminate the Provider Content Licence with respect to particular Provider Content owned or otherwise associated with you when you delete that Provider Content from the website or the relevant application; and
- you terminate the Provider Content Licence with respect to all of your Provider Content when you delete your Member Account.
9.4 Survival of the Provider Content Licence
The Provider Content Licence does not terminate immediately in all circumstances. For example, the Provider Content Licence continues to the extent that preservation or use of the relevant Provider Content is necessary in our opinion to:
- maintain the integrity of our backups (in which case it will not generally be made available to others via the website or through any application);
- recover from hardware or software failures by restoring from backups in which your Provider Content subsists;
- enable us to comply with legal processes and the lawful orders of courts, government authorities, and regulatory bodies;
- enable us to enforce these Terms; and
- respond to claims of wrongdoing by you or us which are made by third parties.
9.5 Ownership of Other Intellectual property
Except as provided in Clause 9.1, nothing in these Terms confers or transfers the ownership of any intellectual property in, or associated with our business, any application, or any of the online properties, including:
- any trademark;
- any content;
- any data owned or controlled by us, including the details of our end users; or
- the source code or object code associated with the application;
9.6 Allegations of infringement of Intellectual Property by you
If we receive an allegation that you have communicated Provider Content which breaches the intellectual property rights of another person, then we have the right to take down that Provider Content in order to limit or avoid our legal exposure, whether by availing ourselves of any safe harbour provisions or otherwise.
10.1 Statutory Terms
The laws in force in Victoria imply certain terms into contracts such as these which cannot be excluded. Such terms include guarantees that services are to be delivered with due care and skill, and that they are reasonably fit for the purposes for which they are intended.
Such guarantees form part of these Terms, and nothing here is intended to exclude, restrict or modify those terms or our liability to you for breach of those terms.
Subject to our obligation under the law not to exclude or restrict our liability to you, we exclude all liability to you for any loss, damage, claims or costs (including legal costs) relating to the operation of the website by us, including –
- the posting or continued publication of any End User Content;
- the unavailability of the website or any application;
- the loss of any content;
- the re-publication of any content which has been deleted or removed by you due to the restoration from backups which do not record the deletion or removal;
- the removal or modification of any Provider Content relating to your business;
- the handling of any complaint made by or against you under these Terms or otherwise; or
- the misuse or misappropriation of any of your content by any end user;
of whatever nature, whether indirect, incidental, special or consequential loss or damage or otherwise, including loss of business or other profits, and however arising, whether through –
- the law of negligence or tort generally;
- breach of contract;
- breach of statutory duty; or
Where liability cannot be excluded our liability to you is limited (at our discretion) to –
- the supplying of the relevant service or services again; or
- the cost of having the relevant service or services supplied again.
11.1 Basic Obligation
You agree to indemnify and hold us and our representatives harmless against all liabilities, claims, costs (including legal costs), losses (including indirect and consequential losses) or damage suffered or caused by:
- your breach of these Terms;
- your running of your programs; and
- the cancellation of any program or class.
11.2 Basic Obligation
Notwithstanding the indemnity provided by you, we retain the right to assume the conduct of any defence to a claim brought against us, and you agree to provide all reasonable cooperation (including by making available relevant documents) that we may require from you in relation to any such claim, proceeding or appeal.
Any and every dispute between us that is not resolved through negotiation conducted in accordance with the procedures set out below must be referred to, and finally resolved by, arbitration administered by the Australian Disputes Centre (the ‘ADC’).
If a dispute arises, any aggrieved party may serve a notice in writing (a ‘Notice of Dispute’) on the other under this Clause 12. To be valid, each Notice of Dispute must:
- briefly detail the alleged facts which give rise to the dispute;
- set out the remedy or resolution sought; and
- explain the legal basis upon which the remedy or resolution is claimed.
Upon receipt of a Notice of Dispute, both Parties must use their best efforts to resolve our differences through good faith negotiation.
12.4 Referral for Arbitration
If the dispute is not resolved within 14 days of the service of the Notice of Dispute then, unless the Parties agree in writing to –
- extend the deadline; or
- adopt an alternative dispute resolution mechanism (such as mediation, conciliation or expert determination);
either of us may refer the dispute to be resolved through arbitration.
12.5 Rules for the Arbitration
Unless both Parties agree otherwise in writing, the arbitration must be administered by the ADC in accordance with the ‘ADC Rules for Arbitration’ which are operating at the time the matter is referred for arbitration. Both Parties agree that these rules are incorporated into this Agreement.
12.6 Place of Arbitration
Unless both Parties agree otherwise in writing, the arbitration must be conducted in Melbourne, Victoria.
13 Changes to these Terms
13.1 Method of Making Changes
We have the right to update these Terms by making changes to this web page.
13.2 Notification of Changes
If you are a member, we will inform you by email of the changes.
13.3 Timing of the Changes
If the change is a minor change, or if the change extends rather than restricts your rights, then the change will take effect immediately.
If the change is more than a minor change and it affects your rights adversely, we will give you an opportunity to refuse the new terms. You can refuse the new terms by deleting your account. Otherwise, you will be deemed to have accepted the new terms if you:
- upgrade your membership in any way after being notified of the change (including upgrading from a free account to a paid account);
- purchase any services that are subject to the new terms; or
- fail to de-activate your account within 30 days of being notified of the change.
14.1 Governing Law
These Terms are governed by the laws in force in the State of Victoria, Australia, and – subject to the requirements of Clause 12 – you submit to the jurisdiction of:
- the courts and tribunals of that State, and
- courts of appeal outside of Victoria which have jurisdiction to hear appeals from that State.
14.2 Entire Agreement
These Terms and the documents referred to in it make up the entire agreement between the parties regarding the use of the website and any application and the associated features and functionality, and they supersede any prior agreements, understandings and arrangements.
If any of these Terms are found to be unenforceable, the remaining terms will remain in full force and effect.
14.4 Waivers, Etc
A delay or failure to enforce these Terms does not amount to a waiver of our rights.
Any waiver of these Terms by us must be made in writing and signed by us. The waiver is only valid with respect to the particular instance or instances specifically referred to in the waiver.
14.5 Transfers, Etc
You have no right to transfer or sub-license any of your rights or obligations (including any membership) under these Terms to anyone else without our prior written consent.
We have the right to transfer or sub-license all of our rights and obligations under these terms upon written notice to you.
15 DEFINITIONS AND INTERPRETATION
In this Agreement, the following words have the following meanings:
‘ADC’ has the meaning defined in Clause 12.1;
‘Agreement Period’ means the period defined in Clause 3.
‘Application’ means any software application designed to advertise events and activities suitable for kids, which is commercialised by us under any trade mark, regardless of whether it is distributed through a third-party service (such as the App StoreTM, or Google Play StoreTM), or directly by us.
‘Content’ means all text, graphics, images, video, sound and other data displayed on, or made available from, any application or the website. It includes, without limitation, Provider Content, and End User Content.
‘End User Content’ means content posted or otherwise entered or uploaded by consumer end-users of any application or online property, including reviews of the services delivered by any Provider.
‘Member Account’ means the account that we maintain for you while you have a valid and existing registration to be a Provider.
‘Notice of Dispute’ has the meaning defined in Clause 12.2;
‘Online properties’ means the website and any other websites and social networking platforms which we use to promote or administer any application.
‘Personal information’ means information that identifies you or could be used to identify you.
‘Provider’ means any business that presents activities or events designed to entertain or educate children, and which is featured on any application or any of the online properties.
‘Provider Content’ means any content about, or relating to, a Provider or the service offerings of that Provider that is displayed on, or communicated using, any application, or any of the online properties.
‘Provider Content Licence’ has the meaning defined in Clause 9.2.
‘Related company’ means any company which would be regarded as a ‘related body corporate’ under section 50 of the Corporations Act 2001 or the Privacy Act 1988.
‘Representatives’ means our directors, employees, shareholders and agents, and the directors, employees, shareholders and agents of any related company of ours.
‘Trade mark’ means any mark, whether registered or unregistered mark, which features or includes the words ‘NRichKids’, including the domain name nrichkids.com.au.
‘Website’ means the website located at the domain ‘nrichkids.com.au’ and on all sub-domains, folders and sub-folders of that domain.
This Agreement is governed by the following rules of interpretation:
A reference to ‘we’, ‘us’ or ‘our’ is a reference to GHES International Pty Ltd 84 619 589 927.
A reference to ‘you’, or ‘your’ is a reference to the entity who registers to become a Provider.
A reference to a person includes a reference to a group of persons or an incorporated body.
A reference to ‘these Terms’, or ‘this Agreement’ means the terms and conditions set out in this document, and any document incorporated by reference.
A reference to the ‘Parties’ is a reference to both you and us.
The concept of ‘communicating Provider Content’ (in any of its grammatical variants) includes communicating the Provider Content through any means using any application, or any of the online properties, including by posting, uploading, entering, messaging, or otherwise sending that content.