Terms of Service

Individuals | Organizational

For Organizations

Kinephonics Agreement with Organizational Subscribers to the Kinephonics Language Learning Platform

This Agreement is between the organization identified in the registration application (the Organization) and Kinephonics Trading Pty Limited ABN 52 622 111 951 (Kinephonics). In this Agreement, the terms “you” and “your” refer to the Organization, and “we” and “our” refer to Kinephonics.

1. Grant

1.1 Subject to the terms of this Agreement, Kinephonics grants your Organization

the non-exclusive, non-assignable, non-transferable and limited right to access and use the Kinephonics Language Learning Platform and associated tools (the Services) during the Term only for your educational operations/internal operations.

1.2 Kinephonics will provide the Organization with a service web portal and an administrator account with which the Organization will be able to create and download content on to the group web page, and make the Services available to the Organization and designated End Users.

2. Your rights and obligations

2.1 The Organization may nominate individual end users (End Users) and permit them to use the Services and content on your designated group page.

2.2 The Organization agrees to manage the accounts of the individual End Users, who are nominated or accepted by the Organization to join its group on the Kinephonics learning platform.

2.3 You will provide Kinephonics with a list of designated End Users and notify Kinephonics of any changes, from time to time.

2.4 The Organization will appoint and nominate a master administrator, who will be the primary point of contact with Kinephonics regarding the account and who will manage all aspects of the account, including the accounts of End Users. The Organization may appoint sub-administrators and will notify Kinephonics of their details and keep all details up to date. Only administrators will be permitted to have access to certain personal data of End Users and their activities on the group page.

2.5 You are responsible for your actions and the actions of your nominated individual End Users when utilizing the Kinephonics Services. You agree to :

(a) cross match and verify the identity and personal data, which those End Users have provided in their registration application with Kinephonics ;

(b) confirm to Kinephonics that the End Users are authorized to join your group page activities;

(c) monitor those End Users’ activities and ensure they comply with the Terms of use and requirements set out under the Kinephonics Terms and Conditions of Use for Individual End Users and under any codes of conduct established by you for the proper activity on the group page;

(d) notify Kinephonics in the event that you withdraw permission for a designated End User to continue to be a member of the group;

(e) if a designated End User is under the age of 16, obtain written explicit consent from the End User’s parents or legal guardians for participation in the group on the Kinephonics learning platform, to action any request by a parent or legal guardian to modify the End User’s rights or deactivate the End User’s account, and to store such consents and requests and notify Kinephonics;

2.6 You agree to promptly notify Kinephonics of any breach of security or unauthorized use of the Services.

2.7 You can only use the services in accordance with the terms set out in this Agreement, as permitted by law and as permitted under any rules, codes of conduct, or guidelines established by Kinephonics from time to time.

2.8 You agree to ensure your user names and passwords are secure and not to disclose them to any third party or allow any third party to use them to access the Services.

2.9 You agree you will not use the Services to communicate any message or material that is harassing, defames another, is threatening, obscene, indecent, discriminatory, racially offensive or is otherwise unlawful, nor will you allow End Users to communicate any message or material that is harassing, defames another, is threatening, obscene, indecent, discriminatory, racially offensive or is otherwise unlawful.

2.10 You agree not to upload viruses or malicious code or do anything that could disable or impair the proper working or appearance of the Kinephonics learning platform.

2.11 You agree not to post or reproduce in any way, material that is copyrighted or use trademarks, without obtaining prior written consent of the owner of that copyright or trade mark.

2.12 You agree that you will not attempt to disassemble or reverse engineer the Services, or in any way attempt to derive any source code for any part of the Services.

2.13 You agree that Kinephonics will have the right to audit the data you hold regarding your users or End Users, including the right to review any consents or communications from parents or legal guardians regarding the use by End Users of the Services.

3. Privacy

3.1 You agree to comply with the terms of the Kinephonics Privacy Statement, which terms are incorporated into this Agreement by this reference.

3.2 You agree to ensure that the Organization implements a privacy policy which complies with all applicable laws in your country of residence, with respect to the collection, use, disclosure and management of the personal data of users of the account, including End Users, which data are received via the Services.

3.3 In terms of any personal data provided by you, you consent to Kinephonics sharing your personal data with third party service providers for the purposes of hosting and operating the Services, analyzing the data for maintaining, developing and optimizing the Services and promoting new Services to you. You also consent to the sharing of your personal data with third parties in the manner set out in section 2 of the Kinephonics Privacy Statement, regarding use of cookies and other technology tracking tools.

3.4 You agree that you are solely liable and responsible for ensuring your compliance with all applicable laws, including privacy and data protection laws, regarding the use or collection of data and information via the Services. You are responsible for all activity related to personal data including monitoring such personal data and activity and preventing and addressing inappropriate data and activity including removal of data and termination of access of any individual in breach. You are responsible for safeguarding and limiting access to the data of End Users by your employees and for the action of your employees who are permitted access to use the services.

4. Fees

4.1 The Services are provided to the Organization on a monthly subscription basis. The fees are set out in the price list on the Kinephonic’s platform and are based upon a specific number of End Users, who are permitted access to the Services.

4.2 If you wish to increase the number of end users who can use the Services, then the Fees will increase in accordance with the schedule of fees for the number of End Users nominated.

4.3 The monthly subscription fee payable includes the good and services tax (GST), value added tax, or any taxes payable in respect of the Services in the jurisdiction where payment is made or received.

4.4 Payment will be made via Paypal. The subscription period commences on acceptance of the payment.

4.5 The Services will renew automatically for additional periods of one month, unless you notify Kinephonics in writing 14 days before the date of renewal that you wish to cancel the account.

4.6 You can elect to have the fees paid on renewal through automatic deduction or similar payment method. If the Organization elects to pay via Paypal, you authorize Kinephonics to charge the account or credit card associated with the Paypal account for the applicable fees on renewal.

4.7 If the payment request for the renewal period is rejected by Paypal, then access to the Services and your Kinephonics account will be suspended until payment is received and processed successfully.

5. Content

5.1 You are permitted to create and download ebooks, training materials and other programs (the Organization Content) on to the Organization’s group page for use by End Users.

5.2 You warrant that all Organization Content is owned by the Organization, or used pursuant to a valid licence from the third party owner of the Content.

5.3 You are solely responsible for any content you or your End Users create, upload, download, post, share or otherwise make available using the Services.

5.4 You give Kinephonics a royalty free, worldwide licence to use your activity on the Kinephonics platform and the Organization Content for the limited purposes of operating, hosting, storing, reproducing, modifying, promoting and improving the Services.

5.5 Kinephonics has no obligation to monitor any content uploaded to the Services, but has the right to monitor any content, if it chooses to do so. If we become aware of a violation of the terms of this Agreement by you, or in response to takedown requests that we receive, we may remove your data from the Services or suspend your access to the Services. We will generally alert you when we take such action and give you a reasonable opportunity to fix your breach, but if we determine that your actions endanger the operation of the Service or other users, we may suspend your access immediately without notice.

6. Intellectual Property/Copyright

6.1 Using the services does not give you ownership of any intellectual property rights in the Services or any third party content to which you are given access by Kinephonics. Kinephonics owns the intellectual property rights in the Services and tools associated with the Kinephonics platform and any derivative works.

6.2 You own the intellectual property rights in the content you create.

7. Availability of Service

7.1 Kinephonics is not and will not be responsible or liable for any failure in the Services resulting from customer content; failure in any telecommunications, network or other service or equipment out of Kinephonic’s facilities; or any force majeure or other cause beyond the control of Kinephonics.

7.2 The Services may be unavailable from time to time, due to upgrades in the Services or maintenance of the Kinephonics learning platform. Whilst Kinephonics will endeavour to notify you in advance of such downtime by posting notices on the home page, Kinephonics will not be liable for any loss arising out of the unavailability of the Services.

8. Term and Termination

8.1 The Agreement will commence on the date payment is accepted for the first subscription period and will continue until terminated in accordance with this clause.

8.2 The Services will renew automatically for additional ongoing periods of one month, unless you notify Kinephonics in writing 14 days before the date of renewal that you wish to cancel the subscription.

8.3 If you violate any of the terms, rules or legal requirements regarding use of the Kinephonics Services, we can immediately suspend or terminate your rights to use the Services.

8.4 We will notify you of the suspension and allow you to provide an explanation or fix the violation, within 14 days, if it can be fixed.

8.5 If payment for the Services is not received by the due date for renewal, then your access to the Kinephonics services will be suspended. If payment is outstanding for 30 days, then the account will be terminated.

8.6 You may cancel the subscription by providing written notice 14 days prior to date of renewal. The cancellation will take effect on the expiration of the current period, that is, the end of the one month period.

8.7 Except as required under the law, on cancellation or termination of your account, your data and the data of End Users using your group page, will be retained for a period of 90 days. After this period, the data will be deleted.

8.8 On termination or expiration of this Agreement, all provisions which by their nature should survive termination or expiration shall survive termination or expiration, including provisions concerning ownership, aggregate data use, payment ( if payment obligations remain outstanding), warranties, disclaimers, indemnity and limitations of liability.

9. Warranties

9.1 Whilst we provide our Services using a reasonable level of skill and care, we make no warranties, except those required by statute or law, which may not be excluded. Some jurisdictions provide for certain warranties, like the implied warranty of merchantability, fitness for a particular purpose and non-infringement.

9.2 OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, AND OTHER THAN WHAT IS REQUIRED BY STATUTE OR LAW, KINEPHONICS DOES NOT MAKE ANY WARRANTIES ABOUT THE CONTENT OF THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

10. Liability for our Services

Kinephonics’ liability, however caused (including by Kinephonics’ negligence), suffered or incurred by you under this agreement for a breach of an express term of this agreement is limited to the amount paid by the Organization to Kinephonics under this agreement. This does not apply to any liability of Kinephonics for failure to comply with an applicable consumer guarantee under the Australian Consumer Law.

11. Indemnity

You agree to indemnify and hold Kinephonics, its officers, directors, shareholders, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Kinephonics by any third party due to or arising out of or in connection with your use of the Services or the use of the Services by individual users whom you have designated, or the content you post on the group page while using the Services.

12. General Legal Terms

12.1 Authority to Bind Organization: the signatories confirm that they have authority to bind the Organization to the terms of this Agreement.

12.2 Severability of Terms: If any of the provisions of these terms are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, those provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these terms, so that these terms shall remain in full force and effect.

12.3 No right to assign Interest: You agree not to transfer or assign your right to use the Services, without our written consent.

12.4 Waiver: Our failure to enforce any part of the terms of this Agreement will not constitute a waiver of our right to later enforce a particular term or any other terms.

12.5 Notices: Unless otherwise specified in the terms of this Agreement, any notices must be given in writing, either by email or regular post.

12.6 Changes to Terms: Kinephonics may make changes to the terms of this Agreement from time to time. Kinephonics will notify of these changes either by email, or by posting on its website. You agree that if you continue to use the Services after the changes take effect, your use will be subject to the revised terms and you will be deemed to have accepted the changes.

12.7 Governing Law: This Agreement will be governed by and construed in accordance with the laws of the state of New South Wales, Australia.

12.8 This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

13. Dispute Resolution

13.1 Any dispute or claim arising out of or in connection with this Agreement or its subject matter, existence, negotiation, interpretation, validity, termination or enforceability (including any non-contractual dispute or claim) (a Dispute) must be referred to arbitration and finally settled under the Australian Centre for International Commercial Arbitration (ACICA)) which rules are deemed to be incorporated by reference in this clause.

13.2 The number of arbitrators will be one. The seat of the arbitration will be Sydney, NSW, Australia. The language of the arbitration will be English.

13.3 The arbitration agreement set out in these clauses 13.1 and 13.2 is governed by the law in force in NSW, Australia.”

If you have any questions please contact us at info@kinephonics.com