WEBSITE TERMS AND CONDITIONS

This website (www.activebabiessmartkids.com.au) (our website) is created and controlled by Toddler Kindy Gymbaroo Pty Ltd (ACN 006 166 141) (TKG, we, us or our). Your access to our website is subject to these terms and conditions, Privacy Statement, notices, disclaimers and any other terms and conditions or other statements issued or authorised by us that are contained on this website (referred to collectively as Terms and Conditions). By ticking the box that states “I agree to the Terms of Usage” on the home page of our website.

These Terms and Conditions apply to your ordinary use of the public sections of our website, and apply to any other agreement you have with us, but only to the extent of any inconsistency.

We may change the Terms and Conditions at our discretion, without notice to you.

1.      Terms of use

1.1    You should not act, or refrain from acting, solely on the basis of the material contained on this website.

1.2    We are a company incorporated in Australia, and the Terms and Conditions are entered into in the Australian jurisdiction.  You should make sure that access to and use of our website is in accordance with the laws of your jurisdiction.

1.3    By ticking the box that states “I agree to the Terms of Usage” on the home page of our website, you agree:

(a)        to provide us with your personal contact details, including name, address,  phone number and email address (your personal information), as a condition of TKG granting access to the website to you; and

(b)        to be bound to the Terms and Conditions.

1.4    You acknowledge that if you do not provide us with your personal information, you will not be able to access our website.

2.      Limitations on Use

2.1    You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from our website or the user content. Nor may you use any network monitoring or discovery software to determine our website architecture, or extract information about usage, individual identities or users.

2.2    You may not copy, modify, reproduce, republish, distribute, display, or transmit for commercial, non-profit or public purposes all or any portion of the Website or the user content without our prior written permission. 

2.3    The publication on our website of any person’s contact details does not constitute implied or express consent by us or the person to receiving unsolicited commercial electronic messages or SPAM.

3.      Links to other sites

3.1    In our website, any frames, links or other references to other websites, persons or information are produced solely for convenience. Those references are not an endorsement of those parties or their products or their services. We do not warrant the accuracy or suitability of any information contained in our or any other website.

4.      Disclaimer and Limitation of liability

4.1    We cannot guarantee the safety or security of your computer systems.  We do not accept liability for any loss or corruption of electronically stored data or any damage to any computer system sustained in connection with the use of our website or user content.

4.2    We make no representations or warranty of any kind, express or implied as to the operation of our website or the user content.  You expressly agree that your use of the Website is entirely at your sole risk.

4.3    To the extent permitted by legislation such as the Competition and Consumer Act 2010 (Cth), our website is provided on an “as is, as available” basis.

4.4    The Competition and Consumer Act 2010 (Cth) and similar State and Territory legislation in Australia may confer rights and remedies on you in relation to the provision by TKG of our website (including the various functions contained on the Website) which cannot be excluded, restricted or modified (Non-excludable Rights). Except for any Non-excludable Rights you agree to exclude all other conditions and warranties implied by custom, law or statute.

4.5    TKG expressly disclaims all responsibility for any loss, injury, claim, liability, or damage, or any indirect, incidental, special or consequential damages or loss of profits whatsoever of any kind resulting from, arising out of or any way related to:

(a)        any errors in or omissions of our website and/or the user content, including but not limited to technical inaccuracies and typographical errors,

(b)        any third party web sites or content directly or indirectly accessed through links in our website, including but not limited to any errors in or omissions,

(c)        the unavailability of our website or any portion,

(d)        your use of our website, or

(e)        your use of any equipment or software in connection with our website.

4.6    The maximum aggregate liability of TKG for all proven losses, damages and claims arising out of the Terms and Conditions, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to an aggregate of all claims of $100.

5.      Indemnification

5.1    You agree to indemnify, defend and hold harmless TKG, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to our website from and against all losses, expenses, damages and costs, including reasonable lawyer fees, resulting from any violation of the Terms and Conditions by you.

5.2    You also agree to indemnify TKG against any claims that information or material which you have submitted to TKG is in violation of any law or in breach of any third party rights (including, but not limited to, claims in respect of defamation, invasion of privacy, breach of confidence, infringement of copyright or infringement of any other intellectual property right).

6.      Access and Security

6.1    We do not warrant that you will have continuous access to our website or that your access or use will be error-free.

6.2    We will not be liable in the event that our website is unavailable to you for any reason (for example,  due to computer downtime attributable to malfunctions, upgrades,  server problems, preventative or remedial maintenance activities or interruption in telecommunication supplies.)

6.3    We reserve the right at any time to:

(a)        deny or terminate all or part of your access to our website where in our opinion, there are concerns regarding unreasonable use, security or unauthorised access or where you have breached any of these Terms and Conditions; or

(b)        block or suspend your account, remove your default settings, or part thereof, without prior reference to you.

7.      Intellectual Property Rights

7.1    TKG is the owner and/or authorised user of all trade marks, service marks, design marks, patents, copyrights, database rights and all other intellectual property appearing on or contained within our website (our intellectual property), unless otherwise indicated. All information, text, material, graphics, software and advertisements on our website are the copyright of TKG, its suppliers and licensors unless expressly indicated otherwise by TKG.

7.2    Use of our website does not grant you any right, title, interest or license to any such intellectual property you may access on our website.

7.3    You are not authorised to use any of our intellectual property without our written consent – to do so would be a breach of our or another party’s intellectual property rights.

7.4    Alternatively, we may authorise you to use content on our website if you contact us and we agree in writing.

8.      Unlawful Activity

8.1    TKG reserves the right to investigate complaints or reported violations of the Terms and Conditions and to take any action we deem appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.

9.      Confidentiality and Privacy

9.1    In the course of your use of our website, you may be asked to provide personal information to us (User Information). TKG’s information collection and use policies with respect to such User Information are set forth in the TKG Privacy Policy[N1] , (refer point 13 below) and is incorporated into the Terms and Conditions by reference. You acknowledge and agree that you are solely responsible for the accuracy and content of the User Information.

9.2    Your use of the Website is subject to TKG’s Privacy Policy.
10.    Severability of Provisions 

10.1  If any provision of the Terms and Conditions is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability.

11.    Third Party Rights

11.1  The provisions of paragraphs 4 (Disclaimer and Limitation of Liability), and 5 (Indemnification) are for the benefit of TKG and its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to our website. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behal

12.    Termination

12.1  The Terms are effective until terminated by TKG.

12.2  In the event of termination, you are no longer authorised to access our website, but all restrictions imposed on you and the disclaimers and limitations of liability set out in the Terms and Conditions will survive termination.

12.3  Such termination shall not affect any legal right that may have accrued to TKG against you up to the date of termination.

12.4  TKG may also remove our website as a whole or any sections or features of our website at any time.

This Policy applies to Toddler Kindy Gymbaroo Pty Ltd and to its franchisees (referred to jointly and severally as “TKG”, “we”, “our”, “us”).  The word “customer” refers to a person, being a parent, and to their child participating in the TKG Parent/Child Education Centres. The words “the franchisees” refers to all organisations franchised by TKG to operate the Toddler Kindy Gymbaroo System.

This Policy outlines TKG’s obligation to manage and protect the personal and sensitive information we hold about our customers and other people. ‘Personal information’ is information or an opinion relating to an individual, which can be used to identify that individual. Some personal information, which we collect, is ‘sensitive information’. Sensitive information includes health information about an individual.

How we collect personal and sensitive information

We generally collect personal and sensitive information directly from the customer. For example, a customer may deal with us on the phone, send us correspondence (by letter, fax or email) or contact us in person. Also, TKG will collect personal information from forms filled out by customers, interviews, business documents and from other people.  Typically, the type of personal information we collect about a customer includes name, age, date of birth, occupation, mailing address, phone numbers and email address. We also collect sensitive information about a customer’s medical history.

If the personal and sensitive information we request is not provided, we may not be able to apply the Toddler Kindy Gymbaroo System appropriately to your needs.

In some circumstances TKG may be provided with personal and sensitive information about a customer from somebody else, for example a referral from another person.

Why does TKG collect personal and sensitive information?

TKG collects personal and sensitive information for the following purposes:

• to conduct our business;
• to provide and promote the Gymbaroo System and Gymbaroo Centres;
• to meet our legal obligations; and
• for educational research and system development.

About whom do we collect personal and sensitive information?

The type of information we may collect and hold includes (but is not limited to) personal and sensitive information about:

• customers;
• franchisees;
• prospective employees, employees and contractors; and
• other people with whom we come into contact.

Web site Collection

TKG collects personal information from the web site www.gymbaroo.com.au through receiving subscription applications and emails. We may also use third parties to analyse traffic at that web site, which may involve the use of “cookies”. Information collected through such analysis is anonymous.

How might we use and disclose personal and sensitive information?

When we refer to “use” of personal and sensitive information, we mean use within our organisation.  When we use the word “disclose” we mean providing the information to persons outside our organisation. This will include all of the companies in the TKG group, as well as to the franchisees.

TKG may use and disclose personal and sensitive information for the primary purpose for which it is collected, for reasonably expected secondary purposes which are related to the primary purpose and in other circumstances authorised by the Privacy Act. Sensitive information will be used and disclosed only for the purpose for which it was provided or a directly related secondary purpose, unless the customer agrees otherwise, or where certain other limited circumstances apply (eg, where required by law).

We use and disclose personal and sensitive information for the following purposes:

• to conduct our business;
• to provide and promote the Gymbaroo System and Gymbaroo Centres;
• to communicate with customers, by providing them from time to time with information contained in newsletters, or brochures;
• to comply with our legal obligations; and
• to help us manage and enhance our services.

We do not disclose personal information we collect to others for the purpose of allowing them to direct market their products and services. We may  use or disclose sensitive information for direct marketing purposes.

We engage other people to perform services for us, which sometimes involves that person handling personal information we hold. In these situations, we prohibit that person from using personal information about you except for the specific purpose for which we supply it.

In relation to information held by us about a customer’s medical history (sensitive information), wherever possible, TKG will attempt to de-identify the information. We also undertake to delete all sensitive information about a customer when it is no longer needed or relevant.

To whom might we disclose personal information?

We may disclose personal information to:

• the franchisees;
• employees of TKG;
• consultants we engage to assist customers;
• organisations involved in all accounting, auditing and due diligence enquiries by the franchisee or on behalf of the franchisee relating to the setting up or maintenance of a franchise;
• organisations involved in a transfer or sale of all or part of the assets or business of TKG (including accounts and trade receivables);
• organisations involved in managing our corporate risk and funding functions (eg securitisation);
• regulatory authorities, if required by law; and
• anyone else to whom the customer authorizes us to disclose it.

We also collect personal information from these organisations and individuals, and deal with that information in accordance with this Policy.

To whom might we disclose sensitive information?

We may disclose sensitive information to:

• the franchisees;
• consultants we engage to assist customers;
• organisations involved in all accounting, auditing and due diligence enquiries by the franchisee or on behalf of the franchisee relating to the setting up or maintenance of a franchise;
• organisations involved in a transfer or sale of all or part of the assets or business of TKG(including accounts and trade receivables);
• organisations involved in managing our corporate risk and funding functions (eg securitisation);
• general and specialist medical practitioners;
• our insurers;
• regulatory authorities, if required by law; and
• anyone else to whom the customer authorises us to disclose it.

We also collect sensitive information from these organisations and individuals, and deal with that information in accordance with this Policy. Sensitive information will not be used by TKG for direct marketing purposes.

TKG franchise operators

Each of the franchisees is aware of this Privacy Policy.  The franchisees understand and have implemented policies in relation to the management of a customer’s personal and sensitive information in accordance with the Privacy Act. These policies include:

(a) regulating the collection, use and disclosure of  personal and sensitive information;

(b) de-identifying the personal and sensitive information wherever possible;

(c) ensuring that the personal and sensitive information is kept securely, protected from loss or misuse, with access to it only by authorised employees or agents of the franchisees; and

(d) ensuring  that the personal and sensitive information is only disclosed to organisations which are approved by TKG.

The franchisees specifically agree only to use personal and sensitive information for the purposes consented to by TKG or by the customer concerned.

Sending information overseas:

We will not send personal or sensitive information to recipients outside of Australia without:

• obtaining the customer’s consent (in some cases this consent will be implied); or
• otherwise complying with the National Privacy Principles (NPPs) contained in the Privacy Act 1988 (Cth) (“ Privacy Act”).

Management of personal and sensitive information

The NPPs require us to take reasonable steps to protect the security of personal and sensitive information. TKG personnel are required to respect the confidentiality of personal and sensitive information and the privacy of customers.

TKG takes reasonable steps to protect personal and sensitive information held from misuse and loss and from unauthorised access, modification or disclosure, for example by use of physical security and restricted access to electronic records.

We may retain some information for a period of perhaps more than seven years for purposes sucha s taxation records and risk management.  Where we no longer require the personal and sensitive information for a permitted purpose under the NPPs, we will take reasonable steps to destroy it.

How do we keep personal and sensitive information accurate and up-to-date?

TKG takes reasonable steps to ensure that the personal and sensitive information it holds is accurate, complete and up-to-date. We encourage customers to contact us in order to update any personal information we hold about them. Our contact details are set out below.

You have the ability to gain access to your personal and sensitive information

Subject to the exceptions set out in the Privacy Act, customers may gain access to the personal and sensitive information which TKG holds about them by contacting the TKG Privacy Officer. If we refuse to provide the information, we will provide reasons for the refusal and inform the individual of any exceptions relied upon under the Privacy Act.

We will require identity verification and to specify what information is required. An administrative fee may be charged for providing access. We will advise the likely cost in advance.

Our duty of confidentiality and non-disclosure

We have a duty to maintain the confidentiality of our clients’ affairs, including personal information. Our duty of confidentiality applies except where disclosure of a client’s personal information is:

• with that client’s consent;
• compelled by law;
• or for the sole purpose of avoiding the probable commission or concealment of a felony.

Updates to this Policy

This Policy will be reviewed from time to time to take account of new laws and technology, changes to our operations and practices and the changing business environment.

Enquiries: If you have any questions about privacy-related issues please email office@gymbaroo.com.au