1 APPLICATION OF TERMS
1.1 These Terms apply to your use of the Website. By accessing and using the Website:
a you agree to these Terms; and
b where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Website, and you must immediately stop doing so.
2.1 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website,you agree to be bound by the changed Terms.
2.2 We may change, suspend, discontinue, or restrict access to, theWebsite without notice or liability.
2.3 These Terms were last updated on 30 October 2019.
In these Terms:
4 YOUR OBLIGATIONS
4.1 You must provide true, current and complete information in your dealings with us(including when setting up any account), and must promptly update that information as required so that the information remains true, current and complete.
4.2 If you are given a User ID, you must keep your User ID secure and:
a not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
b immediately notify us if you become aware of any unauthorised use or disclosure of your User ID, by sending an email to firstname.lastname@example.org.
4.3 You must:
a not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, time bomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or anyUnderlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and
b unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.
4.4 You must obtain our written permission to establish a link to our Website. If you wish to do so, email your request to email@example.com.
4.5 You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Website by using your UserID.
5 INTELLECTUAL PROPERTY
5.1 We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems.
6.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
a the Website being unavailable (in whole or in part) or performing slowly;
b any error in, or omission from, any information made available through the Website;
c any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use theWebsite. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and
d any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
6.2 We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.
7.1 To the maximum extent permitted by law:
a you access and use the Website at your own risk; and
b we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort(including negligence), equity, breach of statutory duty, or otherwise.
7.2 Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of mandatory applicable consumer legislation or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to$100.00.
7.3 To the maximum extent permitted by law and only to the extent clauses 7.1 and 7.2 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Website, or your access and use of (or inability to access or use) the Website, must not exceed $100.00.
8.1 You are not required to provide personal information to us, although in some cases if you choose not to do so then we will be unable to make certain sections of theWebsite available to you. For example, we may need to have your contact information in order to provide you with updates from our Website.
8.2 When you provide personal information to us, we will comply with the relevant privacy legislation.
8.3 The personal information you provide to us (including any information provided if you register for an account) is collected and may be used for communicating with you, statistical analysis, the marketing by us of products and services to you, credit checks (if necessary), and research and development.
8.5 Generally, we do not disclose personal information to third parties for them to use for their own purposes. However, some of the circumstances in which we may do this are (without limitation):
a to service providers and other persons working with us to make the Website available or improve or develop its functionality (e.g. we may use a third party supplier to host the Website);
b in relation to the proposed purchase or acquisition of our business or assets; or
c where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.
8.6 Any personal information you provide to us may be stored on the servers of our trusted service providers, which may be located abroad. This may involve the transfer of your personal information to countries which have less legal protection for personal information than your local country.
8.7 You have the right to request access to and correction of any of the personal information we hold about you. If you would like to exercise these rights, please email us at firstname.lastname@example.org.
9 SUSPENSION AND TERMINATION
9.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to theWebsite (or any part of it).
9.2 On suspension or termination, you must immediately cease using the Website and must not attempt to gain further access.
10.1 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.
10.2 For us to waive a right under these Terms, the waiver must be in writing.
10.3 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.5, 5, 6, 7, 10.1, continue in force.
10.4 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
10.5 These Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.
11 GOVERNING LAW
11.1 Governing Law:The Terms are governed by: (if you accessed this service in New Zealand) NewZealand law and are subject to the non-exclusive jurisdiction of the NewZealand Courts; (if you accessed this service in Australia) Australian law and are subject to the non-exclusive jurisdiction of the Courts of Victoria and any courts competent to hear appeals from those Courts; or otherwise New Zealand law and are subject to the non-exclusive jurisdiction of the New Zealand Courts.Any dispute relating in any way whatsoever to Kindly, the Terms or theWebsite will be heard in English language in Auckland, New Zealand orMelbourne, Australia (as applicable having regard to the governing law). You agree that any claims or disputes cannot be brought as a class action. No party to this agreement shall commence any court or arbitration proceedings relating to a dispute or difference arising out of or related to this agreement, unless that party has first complied with this clause. The parties agree to mediate any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question regarding its existence, validity or termination. Should the parties not be able to agree the selection of a mediator and or terms and or fees within 10 working days from the date one party delivers written notice to the other party that they wish the dispute or difference be resolved by mediation, then either party may request the appointment of the mediator and its standard terms including fees by Chair (or such like) of the Resolution Institute (or successor body), who will determine such matters.