THIS IS A BINDING AGREEMENT between KodaChat Pty Ltd (us) and any person (you) who registers a User Account on the Site.
In consideration of your access to and/or use of your User Account on the Site and the Services, you agree to abide, and be bound, by the terms and conditions set out in these Terms of Service.
In these Terms of Service, all other grammatical forms of defined terms have a corresponding meaning and:
Child means a User under the age of 18 of whom you are the parent or legal guardian.
Content means any data, text, files, information, user names, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or material posted to the Site.
Intellectual Property Rights means all intellectual property rights, including patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trademarks, service marks, trade names and any right to have confidential information kept confidential (together with any application or right to apply for registration of any such rights).
ISP means internet service provider.
ISP Services means internet service and/or access provider services.
Services means the social networking services we provide via the Site intended for use by between children between the ages of 7 and 13, as more fully described in clause 3.
Site means the website located at www.kodachat.com.
User means any person who accesses or uses the Site. User Account means an account registered by a User on the Site under clause 2.
2. REGISTRATION OF USER ACCOUNT
2.1 Registration. You must register a User Account in order to use the Site and receive the Services.
2.2 Accuracy. When registering as a User of the Site, you must provide us with accurate, complete and up-to-date information as requested on the registration page of the Site. It is your responsibility to inform us of any changes to that information. You may do this at any time by accessing your User Account page on the Site.
2.3 Obligations. We may, in our absolute discretion, refuse registration or close your User Account if:
(a) you register or attempt to register more than one User Account;
(b) you breach these Terms of Service;
(c) you open or attempt to open a User Account using incomplete or falsified details, or otherwise in a fraudulent or illegal way; or
(d) we consider refusal of registration or the closure of your User Account is necessary to comply with our obligations at law.
2.4 Responsibility and security. You acknowledge and agree that:
(a) you are solely responsible for all activities that occur on your User Account;
(b) your password is confidential; and
(c) you will keep your password secure and not disclose it to any other person, nor will you permit your username and password to be given to or used by any other person.
You must change your password regularly and notify us if you have reason to believe the confidentiality of your password is compromised.
3.1 Purpose. The Site is designed for social networking for children aged between 7 and 13, in association with a User Account held by a parent or guardian.
3.2 Functionality. The Site has the functionality described below:
(a) Parent to parent approval: you can decide who your Child connects with and who can
send private messages to your Child.
(b) Parents can revoke their Child's connection with another User at any time.
(c) Parents can suspend or terminate their Child’s account at any time.
(d) Parents can exchange messages with their own Child, however cannot connect with or
exchange messages with another Child, unless the parent of that other Child has invited
them to connect with their Child.
(e) Parents of children who are connected via the Site can connect and exchange
messages with one another.
(f) Parents can supervise Content and approve photos or links their Child sends or receives
via private message.
(g) Profanity filtering for inappropriate language for children.
(h) Parents can set scheduled block out time to access the Site so their Child can only be
contacted during the hours that they approve.
(i) Users have a ‘Me’ profile page.
(j) Parents can approve and revoke their Child's access to the Koda Live posting feed. The
Koda Live feed allows Users the ability to post photos and accompanying text.
(k) Parents can supervise Content and approve photos or links their Child sends or receives
via the Koda Live feed.
3.3 No guarantee of access. You acknowledge and agree that, to the extent permitted by law, and subject to clause 8.2, we give no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Services or any ISP Services. We will not be liable if the Services, or any information obtained in relation to them, is inaccurate, outdated or incorrect, or if the Services or the ISP Services are unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including our third party service providers);
(c) maintenance or repairs carried out by us or any third party service provider in respect of any of the systems used in connection with the provision of the Services or the ISP Services;
(d) any events beyond our control; or
(e) services provided by third parties ceasing or becoming unavailable.
4. YOUR RESPONSIBILITIES
4.1 ISP Services. To use and access the Services, you must have access to:
(a) a valid User Account on the Site; and
(b) an account for the provision of ISP Services with an ISP in Australia.
Your ISP (and not us) is responsible for the provision of ISP Services pursuant to any agreement between you and that ISP in respect of those ISP Services. You are responsible, and are solely liable, for any account charges or other costs incurred in relation to the ISP Services, including the use of the Services using the ISP Services.
4.2 Information. You agree to provide all information required to enable us to provide the Services. You must ensure that all such information is accurate and complete. We will not be liable for any loss or damage arising from any inaccuracy, omission or other defect in any such information.
4.3 Your obligations. You acknowledge and agree that:
(a) you are the parent or legal guardian of the Child who will access the User Account to use the Site;
(b) you are responsible for the use of the Site by your Child and must ensure that your Child complies with these Terms of Service;
(c) parental supervision and control are of critical importance to the use of the Site and the safety of children using the Site;
(d) you are solely responsible for all actions or omissions, whether negligent or otherwise, undertaken by you or your Child in connection with the use of the Site; and
(e) you must not (and you must ensure that any Child for who you are the parent or legal guardian does not) use the Site for any illegal, fraudulent or offensive purpose, or transmit any illegal, fraudulent or offensive material within the Site.
4.4 Compliance. You must comply with our reasonable directions in relation to your access to or use of the Services. In addition, you must use the Services in good faith, and must at all times comply with these Terms of Service and all applicable laws, statutes and regulations in all jurisdictions that relate to your access to or use of the Services (including applicable privacy laws).
5. CONTENT MADE AVAILABLE ON THE SITE
5.1 Your Content: You are solely responsible for your conduct and any Content that you or your Child submits, posts or displays on or via the Site.
5.2 Content made available on the Site: You acknowledge that if you or your Child is connected with another User via the Site, any Content posted by that User to their User Account will be visible to you and your Child via the Site if you have approvals switched on. If approvals have been switched off then any Content posted or sent by another User will be seen by your child without further approval from you as to the acceptability of that Content. You are responsible for supervising the Content made available by another User, including to:
(a) report that Content to us if you consider that the Content is in breach of these Terms of Service; and/or
(b) revoke any approval of your Child’s connection with another User.
5.3 Posting Content and etiquette. You acknowledge that the target audience of the Site is children, and therefore your Content, and the Content of your Child (if applicable), should focus on providing Content that will be of interest to, and suitable for, children. You must use your best judgment in posting Content that is appropriate and not harmful. Without limiting this obligation, you acknowledge and agree that you must not submit, upload or otherwise display via the Site Content that is:
(a) offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, harassing or ethically objectionable or inflammatory; or
(b) false, misleading, fraudulent or defamatory, or infringes the Intellectual Property Rights of any third party.
You must check periodically for updates or replies to your Content and manage these accordingly.
5.4 Removal of Content. We may, but have no obligation to, remove, edit, block, and/or monitor Content or accounts containing Content that we determine in our sole discretion to breach this clause 5 or otherwise be inappropriate for children.
6. RESTRICTIONS ON USE
6.1 Restrictions. You must not:
(a) use the Site or the Services for any purpose other than as permitted by these Terms of Service;
(b) remove or tamper with any copyright notices on the Site or the Services;
(c) disassemble, decompile, reverse engineer, or create derivative works or functionally equivalent software from the Site (except to the extent permitted by Division 4A of Part III of the Copyright Act 1968 (Cth));
(d) disassemble, decompile, reverse engineer, or create derivative works from the Services;
(e) copy or download, in a systematic manner, any content, graphics, video, text or animation from the Site or the Services, or communicate or otherwise distribute such systematically obtained content, graphics, video, text or animation; or
(f) incorporate the Services in any product to be made available commercially (unless we expressly agree otherwise with you).
6.2 Disruption. You must not, directly or indirectly, introduce or permit the introduction of, any virus, worm, Trojan or other malicious code into the Site or the Services, or in any other manner whatsoever corrupt, degrade or disrupt the Site or the Services.
6.3 Unlawful, unauthorised or dangerous use. You must not (nor permit a third party to) submit any data or information to the Site or the Services, nor otherwise use the Site or the Services:
(a) to engage in any activity which breaches any law, infringes a third party’s rights, or in a manner which interferes with the rights of any other person;
(b) to infringe our Intellectual Property Rights (including trademarks and copyright) or the Intellectual Property Rights of any third party;
(c) in any way that is defamatory, obscene, misleading or deceptive or otherwise illegal; or
(d) in any way that constitutes misuse, or resale or other commercial use, of the Services or any associated materials.
7. TITLE AND INTEREST
7.1 Site and Services. You agree that all rights, title and interest (including all Intellectual Property Rights) in and to the Site and the Services vest absolutely in us (and/or our third party licensors). The only rights you have in respect of the Services are those granted to you under these Terms of Service.
8.1 Indemnity. You indemnify us (and all of our subsidiaries, employees, officers and agents), and must keep us indemnified, against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising from any claim by a third party arising directly or indirectly out of or in connection with your access to or use of the Services.
8.2 Consumer guarantees. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under these Terms of Service. However, if a supply under these Terms of Service is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in these Terms of Service excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law; provided that, to
the extent the Australian Consumer Law permits us to limit our liability, then our liability is limited to (at our option):
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired. 8.3 Exclusion of liability. Subject to clause 8.2, we exclude liability for all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise suffered or incurred by any person:
(a) in connection with or in any way relating to the Site or the Services, including (without limitation):
(i) any death or personal injury arising in connection with use of the Site;
(ii) in connection with any disruption to or unavailability or failure of the Site or Services or interference with or damage to computer systems or other electronic devices;
(iii) in connection with errors, omissions or inaccuracies contained in any information published on the Site or supplied by us to you via email or otherwise;
(iv) as a result of any fraudulent use, misuse or misappropriation of your User Account; or
(v) as a result of any act committed by another person in connection with your (or another User's) use of the Site or the Services;
(b) arising from any circumstance beyond our control; and
8.4 Acknowledgement. You acknowledge and agree that we:
(a) cannot and will not be responsible for any Content made available via the Site, including Content submitted, posted or displayed by another User, and you and your Child uses the Site at your own risk; and
(b) do not endorse any Content and disclaim any responsibility or liability to any person or entity for all losses, damages, costs and expenses arising from any Content.
9.1 Termination for breach. Where you have breached any provision of these Terms of Service, and without prejudice to any other rights or remedies, we may by written notice immediately terminate these Terms of Service or the provision of any Services, without any liability to you. This will include termination of your User Account.
9.2 Termination without cause. We may terminate your access to and use of the Services (including your User Account) without cause by giving you 14 days' prior written notice.
9.3 Consequence of termination. You acknowledge and agree that, on termination of these Terms of Service for any reason, or should you close your User Account, you will cease to have access to the Services, and where applicable, make payment to us for all outstanding fees owed under these Terms of Service. 9.4 Survival. Clauses 8, 10 and 11 survive termination of these Terms of Service.
10. CONFIDENTIALITY AND PRIVACY
10.1 Confidential information. Neither party may disclose to any third party, without the prior written consent of the other party, any confidential information received from the other party for the purposes of providing or receiving the Services. Our confidential information includes our methodologies and tools. This restriction does not apply to information which is or becomes generally available to the public (other than as a result of a breach of an obligation under this clause), is independently developed by the recipient, or is required by law to be disclosed.
11.1 Assignment. You may not assign your rights under these Terms of Service, or attempt or purport to do so, without our prior written consent (which may be given or withheld in our absolute discretion).
11.2 Force majeure. Neither party will be liable to the other for any failure to fulfil, or delay in fulfilling, its obligations caused by circumstances outside of its reasonable control (including illness of our consultants). However, this clause does not apply to any of your obligations to pay money for Services performed.
11.3 Governing law. These Terms of Service are governed by and interpreted in accordance with the laws of the State of Western Australia, Australia, and all parties submit to the jurisdiction of the courts of that State.
11.4 Severability. If any provision, or part of a provision, of these Terms of Service is found to be illegal or unenforceable it will be severed from the agreement, and the remainder of these Terms of Service will be construed as if that provision or part did not form part of these Terms of Service. The previous sentence will not apply if the provision or part to be severed constitutes a material and fundamental element of the agreement between the parties.
11.5 Variation. We reserve the right to revise and amend the Terms of Service in our discretion, as follows:
(a) if we consider that the change is likely to benefit you or have a neutral or minor detrimental impact on you, then we may make any changes immediately without notifying you except by publishing the amended Terms of Service (as applicable) on the Site;
(b) if we consider that the change is likely to have a significant detrimental impact on you, then we will make the change after we have notified you of the change (solely by using the email address you have provided) and will display a notice on the Site describing the change.
Your continued use of the Site after an amendment will mean that you agree to that amendment. You must stop using the Site if you do not agree to an amendment.
11.6 Entire agreement. These Terms of Service are the entire agreement between the parties on its subject matter and supersede any previous arrangements, agreements, representations, understandings or statements (whether verbally, in writing or in another format).
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