Parents and two children

Services and Confidentiality Agreement

Confidentiality: We take the confidentiality of your information and information relating to your child very seriously. Please see the confidentiality clause below (clause 3.3) for more details on how we will protect your information.

Terms and Conditions

This Agreement is entered into between Whanau Group Pty Ltd ACN 626 515 884 (we, us or our) and you, the person, organisation or entity accepting the Agreement (you or your), together the Parties and each a Party.

Background

myWhānau offers a scheduling service for busy parents. The service helps parents keep track of their child’s schooling and extracurricular activities.

1. Acceptance and Term

1.1 You accept this Agreement by clicking a box indicating your acceptance.

1.2 This Agreement will commence on the Commencement Date and will continue until the date the Agreement is terminated in accordance with its terms (Term).

2. Commencement

2.1 We agree to commence the provision of the Services within a reasonable time after the later of:

  • the Commencement Date;
  • receipt of payment of the Joining Fee and the first week’s Subscription Fee in full; and
  • the provision of the initial information we require from you.

3. Our obligations

3.1 In consideration of your payment of the Subscription Fee, we agree to provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

3.2 We agree to use reasonable efforts to ensure all of our obligations under the Agreement, including the performance of the Services, will be carried out by suitably competent and trained Personnel and in an efficient and professional manner.

Our confidentiality requirements

3.3 We agree:

  • not to disclose your Confidential Information to any third party other than as required to provide the Services;
  • to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and
  • to only use your Confidential Information for the purposes for which it was disclosed or provided to us by you, and not for any other purpose.

3.4 The obligations in clause 3.3 do not apply to Confidential Information that:

  • is required to be disclosed in order for us to comply with our obligations under this Agreement;
  • is authorised to be disclosed by you;
  • is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
  • must be disclosed by Law or by a regulatory authority, including under subpoena.

3.5 We agree that monetary damages may not be an adequate remedy for a breach of confidentiality under this Agreement. You are entitled to seek an injunction, or any other remedy available at law or in equity, at your discretion, to protect yourself from a breach (or continuing breach) of this confidentiality under this Agreement.

4. Your Obligations

4.1 You agree to:

  • provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at Law;
  • only provide access to the calendar included in the Services to users who are pre-approved by us;
  • confirm the details of any event in your calendar before relying on the information in your calendar; and
  • comply with this Agreement, our reasonable requests or requirements, and all applicable Laws.

5. Your information

School & extracurricular activity account information

5.1 For us to provide the Services, you will be required to provide us with account credentials to Third Party platforms (Credentials), such as your child’s school portal and/or school’s application.

5.2 You acknowledge that you have provided written approval and you agree to authorise us to use the Credentials to access the relevant Third Party platforms to perform the Services.

5.3 Upon termination of this Agreement, we recommend you change your Credentials in order to ensure that your security is not compromised.

Creating your account

5.4 We may offer as part of our Services to create a free account on a Third Party platform on your behalf (such as a Gmail account).

5.5 Where, with your written approval we create a free account for you on a Third Party platform or access an existing account on a Third Party platform, including where we use your name and mobile number to create the account or access a Third Party platform:

  • we will only use features which are provided free of charge by that Third Party; and
  • you must provide us the applicable account information/personal information required and you acknowledge and agree that by giving us written approval you will be directly responsible for any:
    1. compliance with terms and conditions or licence of the Third Party; and/or
    2. any fees charged by the Third Party where you choose to use that Third Party account to make any purchases.

5.6 Where we create an account on a Third Party platform for you we agree to provide you with details of your account information and we will retain a copy in our systems.

5.7 Upon termination of this Agreement:

  • we recommend you change your account information in order to ensure that your security is not compromised; and
  • we will remove our telephone number from the two step verification process for the Third Party calendar or if this has not been carried out by us, you agree to promptly do so.

Your emails

5.8 You agree that as part of the Services we require you to set up automatically forwarding of the emails received from or sent to your child’s school or extracurricular activities, and included in the Services, to us. You can choose to build in exclusions to the emails sent to us by using the word ‘personal’ in the subject. For further information, please see our frequently asked questions on the website.

5.9 We will use these emails solely to perform the Services, to update your schedule and we will not respond to these emails.

5.10 It is at your discretion which emails we receive. However, if you choose to restrict us from receiving emails you acknowledge and agree that this may impact on your experience of the Services and in certain circumstances we may not be able to provide the Services.

Storage of your information

5.11 Your Credentials, account information and any other personal information you provide to us is stored securely in our systems and can only be accessed by the necessary Personnel or Third Party providers that assist us with performing the Services.

6. Payment

6.1 You agree to pay us the Joining Fee at the time of executing this Agreement with us.

6.2 You agree to pay us the Subscription Fee upfront on a weekly basis, on the calendar day corresponding to the Commencement Date (Payment Date). In some cases, your Payment Date may change, for example, if payment is unable to be processed.

6.3 Your Subscription to the Services will automatically continue until cancelled in accordance with clause 12 (cancellation and termination).

6.4 We may modify the Services included in your Subscription and the Subscription Fees from time to time. Any change in the Services included or any Subscription Fee will apply to you no earlier than 30 days following notice to you via email.

6.5 You may upgrade or downgrade your Subscription by sending us an email requesting to alter the Services (including varying the number of children included in the Services or who has access to the Services). We will inform you of the new Subscription Fee and if you agree to this new Subscription Fee your chosen payment will automatically be charged the new Subscription Fee on your next Payment Date and the varied Services will come into effect from that Payment Date

6.6 If any payment has not been made within 3 days of the Payment Date, we may (at our absolute discretion) immediately cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so.

7. Warranties

7.1 You represent, warrant and agree that:

  • there are no legal restrictions preventing you from entering into this Agreement;
  • all information and documentation that you provide to us in connection with this Agreement is true, correct and complete; and
  • you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement.

8. Intellectual Property

8.1 As between the Parties:

  • we own all Intellectual Property Rights in Our Materials (this does not include materials owned by Third Parties, such as Google); and
  • you own all Intellectual Property Rights in Your Materials, and
  • nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

8.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in us upon creation.

8.3 We grant you a non-exclusive, revocable, non-transferable right and licence, for the duration of the Term, to use Our Materials that we provide to you, and the New Materials and Improvements, solely for the purposes for which they were developed and for your use and enjoyment of the Services, as contemplated by this Agreement.

9. Australian Consumer Law

9.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).

9.2 Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:

  • to cancel this Agreement with us; and
  • to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel this Agreement and obtain a refund for the unused portion of this Agreement.

9.3 If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

9.4 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

10. Exclusions to liability

10.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

  • your acts or omissions, including failing to provide Credentials, forward emails or provide any other information reasonably required by us;
  • any use or application of the Services by a person or entity other than you or a pre-approved user;
  • any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
  • any Third Parties;
  • the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or
  • any event outside of our reasonable control, including where we have not been provided or have not received information about an event or about a change to an event.

11. Limitations on liability

11.1 Despite anything to the contrary, to the maximum extent permitted by law:

  • neither Party will be liable for Consequential Loss;
  • a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (including any of our Personnel); and
  • our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Subscription Fee paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

12. Cancellation and Termination

12.1 You may cancel your Subscription and terminate this Agreement at any time by giving us 5 days’ notice in writing. Your Subscription will then terminate on your next Payment Date.

12.2 We may terminate this Agreement immediately with written notice to you, if:

(a) you breach any material term of this Agreement;

(b) you breach any term of this Agreement and that breach has not been remedied within 10 days of being notified by us; or

(c) for any other reason outside our control which has the effect of compromising our ability to provide the Services.

12.3 Upon termination of this Agreement:

  • we will immediately cease providing the Services;
  • we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information, including any Credentials we hold for you or other account information;
  • we agreed to promptly, stop accessing your calendar and any Third Party platforms on your behalf;
  • you agree that any payments made by you to us are not refundable to you; and
  • you agree not to disparage or otherwise make any unfavourable statements or comments regarding us, our Personnel, our clients, either directly or by implication, verbally or in writing.

12.4 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

12.5 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

13. General

13.1 Delay: To the extent that any delay is caused by you, we will have no liability for a failure to perform the Services or delay in performing the Services.

13.2 Survival: Clauses 3.3, 8, 9, 10, 11 and 12 will survive termination of this Agreement.

13.3 Amendment: This Agreement may only be amended by written instrument executed by the Parties.

13.4 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under this Agreement without our prior written consent.

13.5 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.

13.6 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute (unless that Party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause).

13.7 Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control.

13.8 Governing law: This Agreement is governed by the laws of New South Wales.

13.9 Notices: Any notice given under this Agreement must be in writing addressed to us at the contact details below and to you on the contact details included in your Account. A Party may change its notice details by written notice to the other Party. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

13.10 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

13.11 Privacy: We will handle your personal information in accordance with our privacy policy (available on our website).

13.12 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

13.13 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

14. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the following meanings:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

Commencement Date means the date this Agreement is accepted in accordance with its terms.

Confidential Information includes information which:

  • is disclosed to us in connection with this Agreement at any time;
  • is prepared or produced under or in connection with this Agreement at any time;
  • relates to you, your children, your schedule or any other affairs of yours; or
  • relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever we receive that information.

Consequential Loss includes any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of our Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.

Intellectual Property means any domain names, know-how, inventions, processes, trade secrets, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not. Including in respect of Intellectual Property.

Joining Fee means the fee we require you to pay before we begin providing the services to you and is as set out on the website as part of the description of the Subscription Fee.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of you in connection with this Agreement or the provision of the Services, whether before or after the date of this Agreement.

Personnel means any of our employees, consultants, suppliers, subcontractors or agents.

Services means the services that we agree to perform under this Agreement, as further particularised on our website and as per your selections at the time that you accept this Agreement (or as updated from time to time).

Subscription means together the Services we agree to perform and the Subscription Fee we agree to perform them for.

Subscription Fee means the Subscription Fee as set out on our website at the time that you accept this Agreement (or as updated from time to time) and includes the Joining Fee, if any.

Third Parties means third parties or any goods and services, websites or platforms provided by third parties, including your child’s school’s website portal and/or school’s application, Google and any other providers or subcontractors which the provision of the Services may be contingent on, or impacted by.

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you before the Commencement Date and/or developed by or on behalf of you independently of this Agreement.

15. Interpretation

In this Agreement, unless the context otherwise requires:

(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(g) a reference to time is to local time in New South Wales; and

(h) a reference to $ or dollars refers to the currency of Australia from time to time.

Whanau Group Pty Ltd ACN 626 515 884
Last Updated: 30 April 2019