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1.1
The Storypark Service is operated by Storypark Limited and Licensed by Storypark Canada Limited (together “Storypark”).
1.2
These Terms set out the terms and conditions on which you (as an Authorised User or Authorised Viewer of the Storypark Service) may access and make use of the Storypark Service.
1.3
You acknowledge that, by accessing the Storypark Service, you agree to be bound by these Terms. If you do not accept these Terms you must immediately stop using the Storypark Service.
1.4
Capitalised terms used in these Terms are defined in clause 15 or otherwise throughout the Terms.
1.5
We may make changes to these Terms at any time. It is your responsibility to check the Terms periodically for changes. Your continued access of the Storypark Service following the posting of any changes constitutes you agreeing to be bound by, the modified Terms.
2.1
Subject to compliance by you with these Terms, we grant to you a right to access and use the Storypark Service solely for your Authorised Purpose. This access is granted from when you (the User) accept these Terms during User Account provisioning with Storypark, and survives until you (the User), the associated Customer, or Storypark terminates this access.
2.2
In order to access the Storypark Service, you must have received express authorisation from the Customer through whose Customer Account you are accessing the Storypark Service and, if applicable, the relevant Primary Account Holder.
2.3
We make the Content available to Authorised Users who have the necessary login details required to access such Content via the Customer Account. As such, if you have any concerns or enquiries regarding Content you access (or wish to access) you must contact the Customer directly with such concerns or enquiries.
2.4
We make the Content available to Authorised Viewers who have the necessary login details required to access such Content, as a result of being invited to view such Content by a Primary Account Holder.
2.5
If you experience any technical difficulties when accessing or using the Storypark Service you can contact Storypark directly at hello@storypark.com or via the Application help function.
3.1
In your access to and use of the Storypark Service and any Content, you must:
only access and use the Storypark Service and any Content you have access to for your Authorised Purpose;
be at least 18 years old, with exception of the Provinces of British Columbia, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, and Yukon where the users must be at least 19 years old, or have authorisation to access the Storypark Service by your parent or legal guardian. If you have authorised a minor to use the Storypark Service, you are responsible for their online conduct, and the consequences of any misuse;
ensure that all information supplied by you to Storypark (or otherwise inputted into the Storypark Service) is true, correct and up to date and promptly notify the Customer or Storypark of any change to such information;
keep all of your access information, including email addresses and log-on credentials, secret and secure. If you have any concerns that your login details are being used by someone else, please contact us at hello@storypark.com or via the Application help function;
comply with all applicable security guidelines and procedures required and made known to you by Storypark and/or the Customer. Storypark may issue revisions to security and guidelines procedures from time to time as Storypark deems reasonably necessary; and
comply with all applicable laws, rules and regulations and all reasonable instructions, guidelines, procedures and policies notified by via email or the Storypark Service from time to time.
3.2
You must not:
attempt to gain access to any Content accessible through the Storypark Service pertaining to a Child without the permission of the corresponding Primary Account Holder and, as applicable, the express authorisation of the Customer;
except as permitted by law (and subject to the exceptions under the law), attempt to gain access to an Organisation Child Record without the permission (or on the instruction) of Storypark or the express authorisation of the Customer;
create or maintain a Family Child Record without the permission of the corresponding Primary Account Holder;
post, republish, reproduce or communicate Content, user feedback or other information about the Storypark Service or any Child, on or through any other platform, forum or medium (including without limitation social media platforms, such as Facebook), except with the consent of the originator of that material and/or the copyright owner or, as applicable, the corresponding Primary Account Holder, and it being understood this is not intended to prevent a consumer from publishing or communicating a review of Storypark or the Storypark Services supplied;
use the Storypark Service or any Content for any illegal, immoral, indecent or inappropriate purpose;
distribute through (or post on) the Storypark Service any attachments, information, documents or files that: (i) infringe on any Intellectual Property right, privacy right, or other proprietary right of any person; (ii) violate any law; (iii) are defamatory, libellous or obscene; or (iv) contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines;
use the Storypark Service in a manner that may bring the Storypark Service or Storypark into disrepute; and/or
modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Storypark Service (or any part of it) or otherwise attempt to: (i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Storypark Service (or any part of it); or (ii) derive the source code or the underlying ideas, algorithms, structure or organisational form of the Storypark Service (or any part of it).
3.3
We reserve the right to remove any Customer Account, User Account, Child Record or any other Content, or any component thereof, which we deem to be in breach of any requirement of these Terms or which is otherwise unsuitable.
4.1
You may become a Primary Account Holder by either:
Accepting an invitation from a Customer Organisation to administer a Family Child Record for the Child you are responsible for; or
Accepting an invitation from another Primary Account Holder to administer a Family Child Record for a Child they are a Primary Account Holder for; or
Using the Application to create a Family Child record for a Child you are legally responsible for.
4.2
If you are a Primary Account Holder, without limiting the application of the other terms in these Terms:
when accepting an invitation from a Customer Organisation to administer a Family Child Record, you may choose to merge an existing Family Child Record you administer with the invited Family Child Record.
you agree that the relevant Customer Organisation has the authority to decide who is an Authorised User for that Customer Organisation, and as such have access to the Content you share from the Family Child Record with that Customer Organisation;
If you do not wish to allow a Customer Organisation to have those rights in 4.2(b) with respect to your existing Family Child Record, then you should not merge those Family Child Records;
you agree that where you have consented to connecting a Family Child Record to a Customer Organisation, various members of that organisation’s staff and Educators may be able to access and view that Family Child Record and access may not be limited to any particular person within that organisation;
if you believe or suspect someone is accessing or managing your Child’s Content without your consent, you should immediately contact Storypark at hello@storypark.com or via the help function in the Application. If you have previously granted someone access to your Child’s Content and you wish to revoke that access, you can remove their ability to access your Child’s Content at any time by following the prompts within the Storypark Service;
you acknowledge and agree that:
Storypark and/or the Customer Organization may create an Organisation Child Record for your Child, and may (now or in the future, and for as long as the Organisation Child Record data needs to be retained for its intended purpose) access, use and store the Child Record: (i) for the purposes of performing the Storypark Service and otherwise complying with its obligations under these Terms; (ii) as required or permitted by law; and (iii) as otherwise specified in the Privacy Policy or consented to from time to time by you.
Educators may access and use Content contained in an Organisation Child Record for the purposes of: (i) documenting their own progress as an Educator, provided that such Content does not personally identify your Child; and (ii) maintaining their own Educator portfolios for use by the Educator during and after their engagement as an Educator, provided that such Educator portfolio does not personally identify any Child;
Administrators may undertake administrative or other activities on behalf of the Customer, including accessing and maintaining Organisation Child Records;
Organisation Child Records are retained by Storypark to assist Customers and Educators in complying with their legal obligations and delivery of services using Storypark. Subject to any rights you have under Applicable Privacy Laws, you do not have the authority to update, delete Content from, or otherwise control any Organisation Child Record;
you may request the deletion of one or more Family Child Records within your control as the Primary Account Holder at any time. It is your responsibility to request removal of all Content you have posted to your account within the Storypark Service before deletion or cancellation. This information may not be recovered by you once an account is cancelled. However, you acknowledge and agree that any such deletion or cancellation shall not affect the Customer’s right to retain an Organisation Child Record for the relevant Child, subject to applicable Privacy laws.
4.3
You must:
ensure that you have obtained (or shall obtain) all consents and issued all notices necessary under Applicable Privacy Laws, for Storypark to lawfully process the Personal Data through the Storypark Service in the manner that you direct and as otherwise anticipated by these Terms, and that such consent is obtained from the correct person. You must obtain (and provide to us) explicit consent to enable such information regarding a Child to be lawfully uploaded into the relevant Child Record; and
notify us (and remove the relevant Family Child Record Personal Data from the Storypark Service) without undue delay if any person fails to provide consent, withdraws their consent, or any part of their consent, or objects to any processing of Personal Data through the Storypark Service. This shall include any withdrawal of consent, or objection received by you from a Child to whom the Personal Data relates, or their parent/legal guardian, or a withdrawal of consent from any other individual whose Personal Data in included in the Family Child Record.
5.1
If you are an Educator, without limiting the application of the other terms in these Terms to you:
you must ensure your Customer Organisation has consent from the actual or proposed Primary Account Holder for each Child in respect of whom you provide services before creating a Family Child Record for that Child or uploading that Child’s Content to the Storypark Service (other than an Organisation Child Record, which is controlled by the Customer).
you must also ensure that any Content you upload to a Child Record does not contain information, images or videos of any other identifiable child or other person, unless you have consent to do so from persons entitled to provide that consent on behalf of that other child or person;
must promptly remove from any Content relating to a Child or other person if asked to do so by the relevant Primary Account Holder;
you must comply with any cybersafety, privacy, and/or code of ethics or similar policies required by Storypark;
you agree that a Primary Account Holder may remove your ability to access or manage their Child’s Family Child Record at any time;
you agree that where the Customer establishes or maintains a Customer Account, your portfolios (in whole or part) and associated content pertaining to that Customer Account and Customer may be made available or accessible (by Storypark) to the Customer;
you may retain copies of parts of Content for the purposes of documenting your own progress as an Educator, provided that such Content does not personally identify any Child and otherwise complies with the above requirements. You can include such content in your own Educator portfolio, and such Educator portfolios may be maintained and used by you during and after your engagement as an Educator by the Customer.
6.1
We do not acquire ownership of any Intellectual Property, including but not limited to copyright, trade-mark or patent or other proprietary rights, in any Content posted through the Storypark Service. Intellectual Property rights in such Content remain with the relevant creator or other copyright owner.
6.2
You grant a non-exclusive licence to us in respect of all of your Content to access, use and disclose such Content as required to: (i) operate the Storypark Service and develop and maintain Child Records; (ii) respond to comments and questions and to provide support to you; (iii) understand how you are using the Storypark Service so that we can improve the Storypark Service and develop new products, services, features and functionality; (iv) where required or permitted by law or where we believe it is necessary to protect our legal rights or interests (including disclosures in connection with the acquisition, merger or sale of a business); and (v) otherwise as required to exercise our rights and comply with our obligations under these Terms (including the Privacy Policy).
6.3
Some of the material (CCL Material) we use in the Storypark Service is licensed pursuant to a Creative Commons Licence and we make the CCL Material available to you on the terms of that Creative Commons Licence. In this regard:
details of the original author of the CCL Material and the relevant Creative Commons Licence will be identified and displayed by Storypark (and will generally be found on the Website and/or the metadata of (or documentation relating to) the relevant CCL Material);
CCL Material is not Storypark property and is credited to the original author. Storypark does not assert or imply any connection with sponsorship or endorsement by the original author of its use of the CCL Material and its inclusion in the Service in no way implies that Storypark has the right to sublicense it to the User or any other person; and
Storypark has not imposed any terms on the use by the User of the CCL Material (or placed any digital rights management technology on the CCL Material, any adaption of the CCL Material or the CCL Material as incorporated with other separate works) that alters or restricts the terms of the Creative Commons Licence, any rights granted under it or which have the effect or intent of restricting the ability to exercise any such rights.
6.4
Except as specified above in respect of the CCL Material, you agree that Storypark or its licensors owns all Intellectual Property Rights associated with the Storypark Service and any other materials created by or on behalf of Storypark (including but not limited to images, photographs, animations, video, audio, text, data, software code, functionality, the interface, Authorised User or Authorised Viewer feedback and accompanying printed or marketing materials).
6.5
By using the Storypark Service, you confirm that any Content you post or otherwise make available to us or to the Storypark Service will not infringe any other person’s privacy, Intellectual Property rights or any law. Storypark reserves the right to remove Content from the Service at its sole discretion without notice. Storypark may remove your Content when:
you provide permission; or
we suspect you have breached these Terms; or
otherwise in accordance with these Terms or our contract with the Customer; or
otherwise as we deem appropriate.
7.1
To the extent permitted by applicable law, you acknowledge that we are not responsible for, and have no liability in respect of, any Content, loss or corruption of Content, or how any Authorised User or Authorised Viewer uses any Content, unless (and only to the extent) our negligence is the sole and direct cause of the loss or corruption of any Content.
7.2
You agree that a back-up of Content from a Customer Account and/or Child Record may be maintained by the Customer and its Customer Organisation(s).
7.3
Some Authorised Users, such as those involved in piloting certain features, may have access to sensitive information, content or Authorised User or Authorised Viewer feedback. If this involves you, you will not disclose this information to third parties without our prior written consent.
7.4
From time to time we may permit an Authorised User or Authorised Viewer to make screenshots or screencasts of the Storypark Service for marketing or educational purposes with our prior consent. Without limiting any other provision, these screenshots or screencasts must not include any Content or any Authorised User or Authorised Viewer data unless the relevant Authorised User or Authorised Viewer gives their prior written consent or, in the case of a Child, the explicit permission of that Child’s Primary Account Holder.
7.5
The ‘Learning Sets’ feature allows Educators to share curriculum or other links to learning within a public audience. These links reflect local learning theories and practice as determined by an Educator or Educators and must not contain any Personal Data about individuals. Sharing these links enables educators to learn from each other. We retain the right to use public content (being Content that does not contain Personal Data) for educational research and to benefit the early childhood sector.
7.6
You grant to us a non-exclusive royalty free world-wide and irrevocable license permitting us to copy, anonymize, aggregate, process and display your Content to derive anonymous statistical and usage data, and data about the functionality of the Storypark Service, provided such data cannot be used to identify you or your Child (Anonymous Data), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all right, title and interest in and to the Aggregate Data and Anonymous Data.
8.1
We collect and process your (and/or your Child’s) Personal Data when you access or use the Storypark Service. In order to provide you with the Storypark Service (and improve on them), we may also collect certain information about the performance of the Storypark Service and use of it, which may include Personal Data.
8.2
Our access to and use of all such Personal Data is governed by our Privacy Policy.
8.3
By agreeing to these Terms, you also agree to the way we handle your Personal Data under our Privacy Policy.
8.4
By accessing and using the Storypark Service you acknowledge and agree that you:
must comply with all applicable laws, including without limitation all Applicable Privacy Laws in your access to and use of the Storypark Service;
if applicable, will make sure that you are updating any Personal Data stored within your User Account that relates to another person when requested to do so by that person;
upon becoming aware of any real or suspected breach of security guidelines and procedures, must notify us without undue delay and shall provide timely information relating to the security incident as it becomes known or as is reasonably requested by us;
if required by Applicable Privacy Laws, will only upload or transfer Sensitive Data to the Service if explicit consent has been obtained from the Primary Account Holder; and
are responsible for your secure use of the Storypark Service, including securing your User Account authentication credentials, protecting the security of Personal Data when in transit to and from the Storypark Service, taking any appropriate steps to securely backup any Personal Data also uploaded to the Service.
8.5
If we become aware of any unauthorised access to any of your or your Child’s Personal Data in our possession, we will let you know and give you information about what has happened in accordance with the applicable law.
9.1
The Storypark Service may contain text, images, data and other content provided by a third party, including Customers, Customer Organisations, Educators and other Authorised Users (Third Party Content). We are not responsible for any of this Third Party Content and we make no representation or warranty about the quality, suitability, accuracy, reliability, currency or completeness of any Third Party Content.
9.2
The Storypark Service may contain links to other websites or resources over which we do not have control (External Websites). Such links do not constitute an endorsement by us of those External Websites. You acknowledge that we are providing these links to you as a convenience, and you further agree that we are not responsible for the content of any External Websites. Your use of the External Websites is entirely at your own risk and is subject to the terms of use and privacy policies located on the External Websites.
10.1
We may immediately by notice in writing to you, terminate (or, in our discretion, suspend) your access to the Storypark Service, in whole or in part, where:
your associated Customer Account has been terminated;
you fail to comply with any of these Terms;
you breach, or attempt to breach, any of our security protocols or systems applicable to the Storypark Service, or access (or attempt to access) data that does not belong to you;
required by law; or
we consider it necessary or desirable to do so to protect our interests or reputation.
10.2
We may also suspend your access to the Storypark Service at any time, in whole or in part:
for such time as is necessary to carry out maintenance we consider to be necessary or desirable;
to reduce or prevent interference with the Storypark Service; and
if required to do so as a result of a direction by any Government, law enforcement or other authority.
10.3
Upon termination of the agreement between us (for any reason) or the Customer Account to which you are linked, you must immediately cease to access or use the Storypark Service.
11.1
To the extent permitted by law, to the extent we do become liable to you in connection with these Terms or the Storypark Service, then all claims by you against us whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise) or any other theory of liability are limited in aggregate to the amount we are able to recover under our insurance in respect of such claims.
11.2
To the extent permitted by law, neither will we or our licensors or suppliers (or any of their directors, officers or employees) be liable for any direct or indirect loss of profits, loss of revenue, loss of anticipated savings, or for any indirect, special or consequential loss arising from your use of the Storypark Service.
12.1
Neither party shall be liable for any delay or failure to fulfil its obligations under these Terms arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic or pandemic (whether or not declared), war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of such event of force majeure.
13.1
Any problems that occur whilst accessing the Storypark Service (or any other correspondence with us) should be notified in writing to hello@storypark.com or via the help function in the Application at your earliest convenience. You may also contact us at:
Storypark Canada Limited, 333 Bay Street, Suite
2400, Toronto, CA, ON, M5H 2T6
Or
1 888 330 9658
13.2
Where any dispute arises between you and us, you (or your representative and associated Customer representative) will negotiate in good faith in an attempt to resolve the Dispute amicably.
13.3
This agreement between you and Storypark is personal to you and you will not license, assign or transfer any of your rights under these Terms without our prior consent. Storypark may assign this Agreement without prior consent from you, including without limitation as part of a bona fide reorganization or other corporate transaction.
13.4
These Terms and the provision of the Storypark Service will be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein, without giving effect to their principles of conflicts of law and you agree to submit to the exclusive jurisdiction of the courts of the province of Ontario in respect of any disputes or claims arising out of or in connection with the Storypark Service.
13.5
If any of provision of these Terms is determined to be illegal, invalid or otherwise unenforceable, then to the extent, it shall be severed and deleted from these terms and the remaining terms shall survive and continue to be binding and enforceable.
Applicable Privacy Laws means the data protection and privacy laws applicable to a party’s processing of Personal Data, including any codes of conduct, administrative decisions, directives or orders made or issued under such legislation.
Authorised Purpose means the purpose for which you are authorised to access and use the Storypark Service, being:
If you are a Primary Account Holder, to control your corresponding Family Child Record (including all Content thereon) and its management, except as otherwise stated in these Terms, including the ability to add new Content relating to your corresponding Child and to permit, approve or disapprove and disallow others to become Authorised Viewers of that Family Child Record;
if you are a Child’s parents, guardians, family members or specialists, to view and/or access the Organisation Child Record and Family Child Record that the Customer Organisation and Primary Account Holder have expressly authorised you to view and access in accordance with the express authorisation given by the Customer Organisation and Primary Account Holder;
if you are an Educator, to view, access, add, and update Organisation Child Records and Family Child Records that the Customer Organisation and Primary Account Holder have expressly authorised your Customer Organisation to view, access, add, and update, in accordance with the express authorisation given by the Customer Organisation and Primary Account Holder; or
if you are an administrator of the Customer, to undertake such administrative or other activities on behalf of the Customer in accordance with the express instructions given by the Customer.
Authorised Users means all persons expressly authorised by the Customer (or, as applicable, Customer Organisations) and/or Primary Account Holder to access and use the Storypark Service in connection with the Customer Account, including Educators.
Authorised Viewer means a person who is expressly authorised by the Primary Account Holder to view and/or access Child Content in the Application, being typically (but not exclusively) limited to that Child’s parents, guardians, family members and specialists.
CCMS Service means any childcare application and management service (if any) supplied by Storypark to the Customer.
Child means an individual under 18 years old and Children has a corresponding meaning.
Child Record means a Family Child Record or an Organisation Child Record.
Confidential Information includes all information exchanged between the parties to these Terms, whether in writing, electronically, or orally.
Content means any content or materials including (but not limited to) still or moving images, videos, sound recordings or other audiovisual materials, artistic works, written works, administration data and Personal Data posted to the Storypark Service by an Authorised User or Authorised Viewer or otherwise contained in any Child Record.
Customer means the Storypark customer (or organisation operated by the customer, as applicable) through whose Customer Account you have been authorised to access and use the Storypark Service.
Customer Account means the customer account on the Storypark Service registered and maintained by the Customer.
Customer Organisation means any organisation, group, service or early childhood education and/or childcare centre for Children owned or operated by, or affiliated with, the Customer.
Educator means any childcare provider or educator at a Child’s Customer Organisation.
Family Child Record means any Content such as a child’s name, Content contributed by Authorised Viewers such as a Child’s parents, guardians, family members, and any other Content pertaining to a Child that is accessible via the ‘child profile’ page that is not contained only within an Organisation Child Record. For clarity, Family Child Records are separate and distinct from Organisation Child Records.
Intellectual Property means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, trademarks (whether registered or unregistered), inventions, patents, designs (whether registered or unregistered), confidential information and know how.
Organisation Child Record means the internal Storypark Child record created and maintained by the relevant Customer Organisation and/or Educators to be able to operate the Storypark Service in accordance with the Authorised Purpose. For clarity, Child Content may be added to an Organisation Child Record.
Personal Data means any information relating to an identified or identifiable individual. This includes names, physical addresses, email address, IP addresses, behavioural data, location data, financial information, health information, and more.
Primary Account Holder means a Child’s parent or guardian or a person expressly authorised by the Child’s parent or guardian to administer and control a Family Child Record.
Privacy Policy means the Storypark privacy policy, applicable to the Storypark Service, available at storypark.com/privacy-policy (as amended from time to time).
Sensitive Data means Personal Data relating to a Child, or a person’s physical or mental health, race or religion.
Storypark, we, us and our means the Storypark entity that you contract with pursuant to these Terms. This will be Storypark Limited (a limited liability company, registered in New Zealand).
Storypark Services means the early childhood e-portfolio service and, if applicable, any CCMS Service, provided by Storypark, including that available on and through the Storypark website, and unless the context requires otherwise includes all such applications Storypark provides (including, without limitation the family version of its device application).
Terms means these Terms and the Privacy Policy.
User Account means an account created for an individual (the user) that provides them access to the Storypark Service. The creation of this account occurs during the user account provisioning process when the user accepts the terms.
you and your means the Authorised User or Authorised Viewer who is using the Storypark Service and has accepted these Terms.
Website means the website at storypark.com or storypark.com, including parts or features of that website that can be used or accessed without requiring registration or logging into the Application.
Storypark Canada Limited, a company incorporated in Ontario, Canada, (“Storypark”) is the licensor of the Application and Website as defined below in the territory of Canada. Your rights to use the Application and Website are set out in this Agreement.
The Service enables a Child’s Authorised Viewers and Early Childhood Providers to upload, record, share and celebrate a Child’s learning through various media, such as images, videos and written stories.
The Service also provides Authorised Users with Early Childhood Service management tools, record keeping, analysis, planning tools and facilitates communication between those interested in a Child’s early childhood learning.
1.1
In this Agreement, unless the context requires otherwise:
Agreement means an agreement comprised of the Customer’s Order Form together with these Customer Terms and any schedules or annexures to either of them.
Applicable Privacy Laws means the data protection and privacy laws applicable to a party’s processing of Personal Data, including any codes of conduct, administrative decisions, directives or orders made or issued under such legislation.
Application means the early childhood e-portfolio service and, as applicable, any CCMS Service, provided by Storypark, including that available on and through the Storypark website, and unless the context requires otherwise includes all such applications Storypark provides and associates with these Customer Terms (including, without limitation the family version of its device application).
Authorised Users means each Customer Organisation and all persons authorised by the Customer or a Customer Organisation to access and use the Application in connection with the Customer Account.
Authorised Viewer means a person who is expressly authorised by the Primary Account Holder to view and/or access Child Content in the Application, being typically (but not exclusively) limited to that Child’s parents, guardians, family members and specialists.
Background Materials means, in relation to a party, any software, documents, data, designs, information or other materials (in any form, including hard copy and electronic form, human-readable and otherwise) which have been developed, licensed or acquired by or on behalf of that party prior to this Agreement or not specifically pursuant to this Agreement (but not including any which have been acquired from the other party).
Business Hours means 0900 to 1700 on any day other than a Saturday, Sunday or public holiday in New Zealand Time.
CCMS Service means any childcare application and management service offered by Storypark to the Customer (if any), as specified in the Order Form.
Child means an individual under the age of majority in the jurisdiction where they reside and Children has a corresponding meaning.
Child Content means Content about, depicting or pertaining to a particular Child.
Child Record means a Family Child Record or an Organisation Child Record.
Content means any content or materials including (but not limited to) still or moving images, videos, sound recordings or other audiovisual materials, artistic works, written works, administration data and Personal Data posted to the Application by an Authorised User or Authorised Viewer or otherwise contained in any Organisation Child Record or Family Child Record.
Confidential Information includes all information exchanged between the parties to this Agreement, where a reasonable party would consider the information confidential, whether in writing, electronically, or orally.
Customer means the person or entity specified as such in the applicable Order Form, that has purchased the Service and has registered a Customer Account.
Customer Account means the Storypark account controlled by the Customer.
Customer Data means data or information that is submitted by the Customer, or by any Authorised Users of the Customer or Authorised Viewers or the Customer enrolled Children, to be stored as a Child Record or processed and made accessible from the Application in any form, regardless of the format, location or medium, and includes the Content and Personal Data.
Customer Organisation means any organisation, group, service or early childhood education and/or childcare centre for Children owned or operated by, or affiliated with, the Customer.
Educator means any childcare provider or educator at a Child’s Customer Organisation.
Educator Portfolio means a personal portfolio of an educator at a Customer Organisation, being created by or for that educator for and in connection with their use of the Services.
Family Child Record means any Content such as a child’s name, Content contributed by Authorised Viewers such as a Child’s parents, guardians, family members, and any other Content pertaining to a given Child that is accessible via the ‘child profile’ page, and not contained only within an Organisation Child Record. For clarity, Family Child Records are separate and distinct from Organisation Child Records.
Fees means the fees specified in the Order Form, including access fees, Implementation Service fees (as applicable), Support Service fees, as amended from time to time in accordance with clause 5.3 and any other fees or charges that may be agreed to by the parties.
Force Majeure Event means any event, circumstance, occurrence or omission which is beyond a party’s reasonable control and, as a direct or indirect result of which, that party is prevented from or delayed in performing any of its obligations under this Agreement (including, without limitation, weather events or other forces of nature, action or inaction by any government agency, strikes or industrial disputes, epidemics and pandemics (declared or undeclared), acts of God, denial of service and other cyber-attacks, war, terrorism or civil disturbance), but excluding any failure to make payment of an amount due under this Agreement.
GST has the meaning given to it in the Excise Tax Act 1985.
Implementation Plan means the implementation plan, if any, to be developed by Storypark with the Customer.
Implementation Services means the implementation services (if any) to be performed by Storypark, as specified in the Implementation Plan.
Intellectual Property means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, trademarks (whether registered or unregistered), inventions, patents, designs (whether registered or unregistered), confidential information and know how.
Initial Term is as specified in the Customer’s Order Form.
Order Form means any order form completed by the Customer (and accepted by Storypark) specifying the Services to be provided by Storypark for the Customer. The Order Form may be electronic, paper-based, or made available through the Application.
Organisation Child Record means the internal Storypark Child record created and maintained by the relevant Customer Organisation and/or Educators and/or Storypark on behalf of the relevant Customer Organisation, to be able to operate the Storypark Application. For clarity, Child Content may be added to an Organisation Child Record.
Personal Data means any information relating to an identified or identifiable individual included in the Customer Data or otherwise made available (directly or indirectly) by the Customer or its Authorised Users or Authorised Viewers to Storypark in connection with this Agreement. This includes names, physical addresses, email address, IP addresses, behavioural data, location data, financial information and more.
Primary Account Holder means a Child’s parent or guardian, or a person expressly authorised by the Child’s parent or guardian to administer and control a Family Child Record.
Privacy Policy means Storypark’s privacy policy located on its website at storypark.ca/privacy-policy as amended by Storypark from time to time.
Renewal Term has the meaning given to the term in clause 2.2.Review Date means the date this Agreement is due to be renewed by.
Review Date is calculated as the number of months, outlined in the Initial Term, from the date of execution by the last party.
Sensitive Data means Personal Data relating to a Child, or a person’s physical or mental health, race or religion, or other information deemed “sensitive” under Applicable Privacy Laws.
Services means the Application, Implementation Services (if any), and any additional services specified in the Order Form or otherwise agreed between the parties in writing from time to time during the Term.
Start Date means the date you activate a subscription for the Services.
Storypark means the Storypark entity that you contract with pursuant to this Agreement. This will be Storypark Canada Limited (a limited liability company, registered in Ontario, Canada).
Supported Browser Versions means the browser versions set out in section 3.4a or as otherwise agreed in writing from time to time by parties.
Term means the Initial Term and any Renewal Term.
End User Terms means the Storypark end user terms set out at storypark.ca/terms-and-conditions as amended by Storypark from time to time.
Third-Party Software means the software and applications set out as Third-Party Software in the Order Form.
Website means the website at storypark.com or storypark.ca, including parts or features of that website that can be used or accessed without requiring registration or logging into the Application.
1.2
In this Agreement, unless the contrary intention appears:
a reference to a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal entity, and any executor, administrator or successor in law of the person;
monetary references are to the currency specified in the Order Form; and
references to times are to the time in the city in which the Storypark entity that you are contracting with is registered.
2.1
This Agreement commences on the Start Date and will continue for the Initial Term, unless terminated earlier in accordance with its terms.
2.2
This Agreement shall automatically renew for successive renewal terms (equal to the Initial Term) (each a Renewal Term) until such time as either party notifies the other (in writing)
3.1
Storypark grants to the Customer a limited, non-exclusive, non-transferable, and revocable licence to access and use the Application (and to enable its Authorised Users to access and use the Application in accordance with the End User Terms) for the Term, strictly in accordance with this Agreement.
3.2
Storypark will:
make available to the Customer a Customer Account via a cloud-hosted portal to enable the Customer and its Authorised Users to access the Application and its functionalities in accordance with this Agreement;
provide the Services in accordance with good industry practices;
Storypark will use reputable and reasonably up-to-date security technologies in providing the Services; and
if the parties agree to an Implementation Plan, Storypark will perform the Implementation Services in accordance with the Implementation Plan, provided that the Customer performs any Customer obligations in the Implementation Plan and otherwise provides reasonable assistance to Storypark to ensure Storypark can perform the Implementation Services.
3.3
The parties agree and acknowledge that Storypark will not be required to provide any hardware, peripherals, software other than the Application and third party software specified in the Order Form, or internet connectivity, to the Customer in connection with this Agreement, and the Customer is solely responsible for:
obtaining and maintaining such items and connections that may be necessary or desirable to optimally access and engage with the Application, including as applicable the Third Party Software and Supported Browser Versions; and
the development, implementation and application of its own internal policies and practices regarding the nature and extent of use of the Application by Authorised Users, provided that such policies and practices must not conflict with any terms of this Agreement and are consistent with all applicable laws.
3.4
The Customer agrees that Storypark only supports and tests systems for:
the last two versions of browsers developed by Firefox, Chrome, and Safari and no other browsers;
the last two major versions of IOS and Android; and
the most recent Windows and Mac OS versions capable of running the last two versions of browsers developed by, Firefox, Chrome, and Safari.
Storypark may, at any time throughout the Term, cease to support and/or test systems for any browser or device if usage of that browser or device drops below 5% over Storypark’s customer base.
4.1
In its access to and use of the Services, the Customer shall (and shall ensure that its Authorised Users):
provide information in connection with registration for and use of the Application that is true, accurate and current, and promptly notify Storypark of any change to such information;
not create, update or maintain (or remove information contained in) a Family Child Record or otherwise provide us with Personal Data regarding a Child without the permission of the corresponding Primary Account Holder;
not attempt to gain access to a Family Child Record without the permission of the corresponding Primary Account Holder, or otherwise provide such a person with Personal Data pertaining to a Child;
not permit a person who is not an Authorised Viewer to access a Child Record;
only use the Services and Child Content, for Customer or Customer Organisation management and administration, educational or developmental purposes associated with the respective Child and for the purposes of creating and maintaining Organisation Child Records, and not for any other purpose, including any other commercial purpose;
not post, republish, reproduce or communicate Content (including Child Content), user feedback or other information about the Services or any Child, on or through any other platform, forum or medium (including without limitation social media platform, such as Facebook), except with the consent of the originator of that material and the copyright owner and, as applicable, the corresponding Primary Account Holder;
not use the Services or any Content (including any Child Content) for any illegal, immoral, indecent or inappropriate purpose nor post any Content or other information or material that is illegal, defamatory, abusive, demeaning, harmful, obscene, hurtful, offensive, objectionable or racist;
if Storypark has consented to the Customer (or its Authorised Users) taking screenshots or screencasts of the Application for marketing or educational purposes, ensure that such screenshots or screencasts do not include any Customer Data unless the relevant Authorised User has given their express consent or, in the case of a Child Content, the corresponding Primary Account Holder has provided express consent;
not post or upload any Content or other information or material that contains any viruses or other harmful components, or infringes any third party’s rights of privacy or Intellectual Property rights;
keep all Customer Account details and passwords strictly confidential;
comply with all applicable security guidelines and procedures required and made known to the Customer by Storypark. Storypark may issue revisions to security and guidelines procedures from time to time as Storypark deems reasonably necessary; and
not undermine the security or integrity of Storypark’s or any third party’s systems or networks, and it is acknowledged by Customer that undertaking penetration (or similar security) tests on such systems or networks may undermine the security or integrity of those systems or networks, and therefore, such actions shall not be taken without the prior written consent of Storypark.
4.2
Storypark reserves the right to remove from the Customer Account, Child Records or Educator Portfolios any Content which it deems to be in breach of any requirement of this Agreement, any applicable law, or which is otherwise unsuitable, at any time without notice, and without liability.
4.3
It is acknowledged and agreed by the Customer that:
An Organisation Child Record can exist for each Child, and Storypark may (both during and after the end of the term of this Agreement) access, use and store such Organisation Child Records: (i) for the purposes of performing the Services and otherwise complying with its obligations in this Agreement; (ii) as required or permitted by law; and (iii) as otherwise specified in the Privacy Policy or consented to from time to time by the Primary Account Holder;
Customer shall (or, as applicable, shall ensure that its Customer Organisations and Educators) create an Organisation Child Record for each Child associated with the Customer Account and keep such Organisation Child Records up to date, accurate and complete;
Educators may access and use Content contained in applicable Organisation Child Records for the purposes of: (i) documenting their own progress as an Educator, provided that such Content does not personally identify any Child; and (ii) maintaining their own Educator Portfolios for use by the Educator during and after his or her engagement as an Educator by the Customer, provided that such Educator Portfolio does not personally identify any Child;
Organisation Child Records exist to assist Customers and Educators in complying with their legal obligations and delivery of services using Storypark. Subject to any rights of an individual in respect of its Personal Data under Applicable Privacy Laws, Primary Account Holder(s) may not access, update or delete Content from an Organisation Child Record, unless such actions are being undertaken by Authorised Users on behalf of a Customer or Storypark (for administrative purposes).
Storypark shall only store Content in Organisation Child Records that is reasonably required to fulfil the purposes set out in this clause 4.3.
4.4
Without limiting any other obligation of the Customer in this Agreement in respect of its Authorised Users and Customer Organisations, the Customer acknowledges and agrees it is responsible for ensuring its Authorised Users accept and comply with the End User Terms before accessing the Application or any Content, and shall indemnify Storypark for any loss, liability, cost, claim or damage suffered or incurred Storypark as a consequence of its failure to ensure such matters.
5.1
The Customer shall pay the Fees for the Services.
5.2
If Storypark creates any additional features and/or functionalities on the Application (which Customer acknowledges that Storypark is not obligated to do), the Customer may access such additional features subject to a corresponding increase in the Fees (as notified by Storypark).
5.3
Storypark may, on notice to the Customer increase the Fees effective from the first date of each Renewal Term (Review Date).
5.4
Unless otherwise expressly stated, all fees, prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST and other sales and value added taxes. If such tax is payable in relation to a taxable supply, the amount payable for that taxable supply is the amount for that taxable supply specified in this Agreement plus the applicable tax.
6.1
Storypark will issue an invoice to the Customer for the Fees on the basis specified in the Order Form and the Customer must pay the Fees specified in each such invoice within the terms advised on the relevant invoice. Fees must be paid (without setoff or deduction, except as required by law) into the bank account or via payment method notified by Storypark from time to time.
6.2
Without limiting any other rights that Storypark may have, where the Customer fails to make a payment by the due date, and that payment is not under dispute, interest will accrue at a rate of 10% per annum on any amounts which are not paid by the due date, but not to exceed the maximum amount permitted by law and shall be payable by the Customer on demand.
6.3
In the event of any dispute arising in respect of an invoice, the Customer shall pay the undisputed portion of the invoice by the due date for payment and the disputed portion of the invoice will be dealt with in accordance with the dispute resolution process in clause 15.
7.1
The Customer acknowledges and agrees that:
the Application may evolve and change over time and that some parts of the Application are dependent on the provision of software or services by third parties. Storypark reserves the right at any time to modify, adapt, suspend or discontinue, whether temporarily or permanently, the Application (or any part of it) or otherwise replace the Application (or any part of it) with a similar service of a similar quality and function as the Application. Storypark will make reasonable efforts to ensure significant changes to the Application are released to the Customer, to the extent practicable, with appropriate notice.
Although Storypark will take reasonable steps to ensure that the Application functions as intended, access to the Application may be disrupted as a result of a malfunction, updating, maintenance or repair of the Application or associated systems, by the actions of a third party licensor or service provider, or for any other reason within or outside Storypark’s control. Storypark will use reasonable endeavours to promptly address (during normal Business Hours) technical issues that arise in relation to the Application.
7.2
To the extent permissible at law, Storypark shall not be liable for any loss, cost, claim or damage suffered or incurred by the Customer or any Authorised User as a result of:
any replacement, modification, adaptation, suspension or discontinuance of the Application (or any part of it); or
any partial or total breakdown of, or inability to use, the Application or for any errors or defects in the Application arising from software or services provided by third party licensors or service providers.
8.1
The Customer grants to Storypark (or to any third party Storypark authorises to act on its behalf), a non-exclusive, non-transferable licence over the Customer Data for the purposes specified in this Agreement and the Privacy Policy, which may be updated by Storypark from time to time, and otherwise as required to handle Customer Data in accordance with the Customer’s (or its Authorised Users’) instructions.
8.2
Storypark will not access, use or disclose Customer Data, except as provided for in this Agreement and the Privacy Policy, or as required or permitted by law.
8.3
Each party must take commercially reasonable steps to ensure that the Customer Data is kept secure from any unauthorised access or use.
8.4
The Customer warrants that it has obtained (or shall obtain) all consents and issued all notices necessary under Applicable Privacy Laws, for Storypark to process Personal Data through the Application and/or Services in the manner provided for in this Agreement and the Privacy Policy, to create, maintain, use and store Organisation Child Records and Family Child Records in the manner anticipated by this Agreement, and as the Customer and any of its Authorised Users otherwise directs, and that such consent is obtained from the correct person(s).
8.5
In respect of all Personal Data (including Sensitive Data) that the Customer or any of its Authorised Users or other Authorised Viewers upload to and/or transfer within the Application and/or Services, the Customer will (and will ensure its Authorised Users will):
comply with its obligations under all Applicable Privacy Laws (including its obligations arising from its control over the purposes and means of processing Personal Data);
only upload or transfer Sensitive Data to the Application where express consent has been obtained from the corresponding Primary Account Holder;
notify Storypark without undue delay if any Primary Account Holder withdraws their consent, or any part of their consent, or objects to any processing of Personal Data through the Application. This shall include any withdrawal of consent, or objection received by the Customer or any of its Authorised Users from a Child to whom the Personal Data relates;
update any Personal Data stored in connection with its Customer Account that relates to another person when requested to do so by that person;
ensure the secure use of the Services (including by all of its Authorised Users), including securing its Customer Account authentication credentials, protecting the security of Personal Data when in transit to and from the Application, and taking any appropriate steps to securely encrypt or backup any Personal Data uploaded to or transferred within the Application and/or the Services;
upon becoming aware of any unauthorised or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Personal Data, or any other breach, or suspected breach, of its security safeguards, notify Storypark without undue delay and shall provide timely information relating to the security incident as it becomes known or as is reasonably requested by Storypark; and
review the information made available by Storypark relating to data security and make an independent determination as to whether the Storypark Service meets the Customer’s (and, if applicable, its Customer Organisations) requirements and legal obligations under Applicable Privacy Laws.
8.6
Storypark may, but shall not be required to, offer through the functionality of the Application a pop-up or embedded form to allow Primary Account Holders to give their consent, retrospectively, to the processing of their Personal Data (or the Personal Data of a Child that they are the parent or guardian of) in connection with the Services. However, the Customer shall not rely on any such functionality and is responsible for ensuring that it obtains consent from the appropriate person(s).
8.7
The Customer also grants to Storypark a non-exclusive royalty free world-wide and irrevocable license permitting Storypark to copy, anonymize, aggregate and process the Customer Data to derive anonymous statistical and usage data, and data about the functionality of the Services, provided such data cannot be used to identify the Customer, its Authorised Users or any other person (Anonymous Data) for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data). Storypark will be the owner of all right, title and interest in and to the Aggregate Data and Anonymous Data.
9.1
The Customer and Storypark will each retain ownership of their respective Background Materials (including all Intellectual Property in them) and nothing in this Agreement will transfer any rights in or to their respective Background Materials.
9.2
As between Storypark and the Customer, the Customer owns, controls, and/or licenses the Content and all Intellectual Property rights in the Content. The Customer grants to Storypark a non-exclusive licence to access, use, disclose and store Content (including for certainty any Background materials therein) for the purposes of providing the Services and otherwise complying with its obligations under this Agreement and at law. The Customer warrants that any Content it (or any of its Authorised Users) post via the Application does not, and will not, infringe any other person’s privacy or Intellectual Property rights or any law and that it has the right to grant the licence to Storypark in this clause 9.2.
9.3
All comments, feedback, suggestions, ideas, and other submissions disclosed, submitted, or offered to Storypark by the Customer or any of its Authorised Users (collectively, Feedback) shall be (and shall remain) owned by Storypark. Storypark will be free to use, without restriction and without attribution or compensation to the Customer or any other person, any ideas, concepts, know-how, suggestions, or techniques contained in any Feedback for any purpose whatsoever, including, without limitation, for incorporation into information provided as part of or in connection with the Services. Customer waives, and will cause all of its Authorised Users to waive, all moral and similar rights in and to all Feedback provided in favour of Storypark.
9.4
The Customer acknowledges that some of the material Storypark uses in its Services is licensed pursuant to a Creative Commons Licence (CCL Material) and Storypark makes the CCL Material available to the Customer and its Authorised Users on the terms of that Creative Commons Licence. In this regard:
details of the original author of the CCL Material and the relevant Creative Commons Licence will be identified and displayed by Storypark (and will generally be found on the Website and/or the metadata of (or documentation relating to) the relevant CCL Material);
CCL Material is not Storypark property and is credited to the original author. Storypark does not assert or imply any connection with sponsorship or endorsement by the original author of its use of the CCL Material and its inclusion in the Service in no way implies that Storypark has the right to sublicense it to the Customer or any other person; and
Storypark has not imposed any terms on the use by the Customer or any of its Authorised Users of the CCL Material (or placed any digital rights management technology on the CCL Material, any adaption of the CCL Material or the CCL Material as incorporated with other separate works) that alters or restricts the terms of the Creative Commons Licence, any rights granted under it or which have the effect or intent of restricting the ability to exercise any such rights.
9.5
The ‘Learning Sets’ feature (within the Application) allows Educators to share curriculum or other links to learning with a wider audience. These links reflect local learning theories and practice as determined by an Educator or Educators and the Customer shall ensure that they do not contain any Personal Data. Storypark may use public content (being Content that does not contain Personal Data) for educational research and to benefit the early childhood sector.
9.6
Other than as expressly provided for in this clause 9, Storypark or its licensors own all Intellectual Property in and associated with the Services, the Application and any other materials created by or on behalf of Storypark (including but not limited to images, photographs, animations, video, audio, text, data, software code, functionality, the interface, feedback and accompanying printed or marketing materials).
10.1
Each party will maintain as confidential at all times, and will not at any time, directly or indirectly disclose or permit to be disclosed to any person other than an employee, contractor or advisor on a “need to know” basis, any Confidential Information except:
as required by law;
as is already or becomes public knowledge, otherwise than:
as a result of a breach by the party disclosing; or
through an unauthorised disclosure by a third party;
as authorised in writing by the other party; or
to the extent reasonably required in order to give effect to this Agreement.
11.1
Except as expressly set out in this Agreement, no conditions, warranties or other terms apply to the Services or to anything else supplied under this Agreement. In particular, no implied conditions, warranties or other terms relating to satisfactory quality or fitness for any particular purpose will apply to anything supplied under this Agreement. Storypark does not warrant that the Services will be uninterrupted or entirely error-free and the Customer acknowledges and agrees that internet transmissions cannot be guaranteed to be 100% secure in all aspects (including in relation to unauthorised use and disclosure of Personal Data) and it, therefore, uses the Services at its own risk.
11.2
Storypark will not be liable for breach of any warranties or other terms in this Agreement to the extent that the breach arises from or in connection with:
any breach of this Agreement by the Customer or any acts or omissions of the Customer or any of its Authorised Users;
use of the Application other than in accordance with normal operating procedures notified to the Customer by Storypark from time to time;
any Third-Party Software or hardware used by the Customer or Storypark in connection with the Services;
any modification of the Application, unless the modification was made by or on behalf of Storypark or with Storypark’s prior written consent; or
any unauthorised use of the Services by the Customer or any of its Authorised Users, or by any other personnel or representatives of the Customer or any Customer Organisation.
12.1
The Customer indemnifies Storypark against all claims, damages, costs (including legal fees on a full indemnity basis), losses, or liabilities that are suffered or incurred directly or indirectly by Storypark (or any of its related entities, personnel or representatives) arising from or in connection with:
the Customer or its Authorised Users access to or use of the Services or Customer Data, or Storypark’s use of the Customer Data in accordance with the terms of this Agreement;
any breach of this Agreement by the Customer, any negligent, wrongful or unlawful act or omission of the Customer or any of its Authorised Users, or any breach of the End User Terms by an Authorised User of the Customer;
violation of any creative commons licence or any Intellectual Property, privacy or other rights of a third party, by the Customer, its Authorised Users or any other person using the Customer Account (whether with or without the Customer’s permission).
12.2
Nothing expressed or implied in this Agreement will confer any liability on either party (first party) in respect of any:
indirect, consequential or special loss, damage, cost or expense suffered or incurred by the other party as a direct or indirect result of a breach by the first party of any of its obligations under this Agreement;
any loss of profits, loss of anticipated savings, loss of revenue or loss of data (in each case whether such loss is direct or indirect); or
loss, damage, cost or expense suffered or incurred by the other party, to the extent to which this results from any breach of this Agreement, or any negligent or unlawful act or omission, by the other party.
12.3
Notwithstanding any contrary provision contained in this Agreement, the maximum liability of Storypark to the Customer (and its Authorised Users) under or in connection with this Agreement (whether in contract, tort or otherwise) shall in no event exceed an amount equal to the Fees received from the Customer by Storypark in the Initial Term.
13.1
Either party may terminate this Agreement for any reason before the end of the Term.
13.2
Storypark may terminate this Agreement or any one or more Services made available to the Customer (or any parts thereof) in the event that Storypark no longer holds (or will in the future lose) the necessary rights or licences needed to provide the Services (or any parts thereof).
14.1
Upon expiry or termination of this Agreement for any reason:
Storypark will deactivate the Customer Account and remove Customer Data from the Application;
the Customer and its Authorised Users must immediately cease using the Services;
the Customer must pay to Storypark all outstanding Fees payable up to the date of expiry or termination; and
both parties must immediately return or destroy (as requested) all material containing the other party’s Confidential Information or proprietary information, subject to a party’s right or requirement to retain copies of the other party’s Confidential Information to the extent:
required for the purposes of compliance with law or internal corporate governance; or
the Confidential Information is located in an archived back-up,
provided the parties will continue to comply with clause 10 with respect to such Confidential Information following termination of this Agreement.
14.2
Fees relating to the unused portion of a Term may be refunded.
15.1
A party may, at any time while there is a genuine dispute relating in any way to this Agreement (Dispute), give written notice (DisputeNotice) to the other party specifying the subject matter of the Dispute and requiring that an authorised senior representative of each party meet, within 10 Business Days after delivery of the Dispute Notice, to attempt to resolve the Dispute. The Representatives will make all reasonable attempts to resolve the Dispute at the Dispute resolution meeting.
15.2
If the Representatives fail to resolve the Dispute under clause 15.1 within 10 Business Days of the Dispute Notice, or if either party fails or refuses to attend the Dispute Resolution Meeting, the parties will immediately be deemed to have submitted the Dispute to mediation in the country in which the Storypark entity that you are contracting with is registered. In the event of any submission to mediation:
the mediator will not be acting as an expert or as an arbitrator;
the mediator will determine the procedure and timetable for the mediation; and
the parties will share equally the cost of the mediation.
15.3
Neither party may issue legal proceedings (except for urgent injunctive relief) unless it first complies with clauses 15.1 and 15.2.
16.1
Without limiting the foregoing, under no circumstances shall Storypark or its subsidiaries, affiliates, officers, employees or agents be held liable for any delay or failure in performance resulting directly or indirectly from any Force Majeure Event.
16.2
The Customer agrees that Storypark may use third party vendors, licensors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate the Applications and store and manage the Content.
16.3
The provisions of this Agreement shall not be varied, except by agreement in writing signed by the parties.
16.4
Notices under this Agreement may be delivered in person or by e-mail to the addresses specified in the Order Form.
16.5
The Customer will not assign its rights or obligations under this Agreement without the prior written consent of Storypark. Any change in control of the Customer will be deemed to be an assignment under this clause 16.5. Storypark may assign this Agreement without the prior consent of Customer, including without limitation as part of a bona fide reorganization or other corporate transaction.
16.6
Any term which by its nature is intended to survive expiry or termination of this Agreement will survive expiry or termination of this Agreement.
16.7
No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party will in any way affect limit or waive that party's right to subsequently require strict compliance with this Agreement.
16.8
This Agreement records the entire understanding and agreement of the parties relating to the matters dealt with in this Agreement. This Agreement supersedes all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.
16.9
This Agreement is governed by the laws of the province of Ontario and the federal laws of Canada applicable therein, without giving effect to their principles of conflicts of law. The parties submit to the exclusive jurisdiction of the courts of the province of Ontario in respect of all matters relating to this Agreement.
16.10
Any Agreement to which these terms are referenced may be signed in any number of counterpart copies which, read together, will constitute one and the same document.
