Terms of Service

Agreement to these Terms

We are Triple Peak Software Systems, a [legal form, e.g. LLC] organised under the laws of [state of formation], with its address at [registered address] ("Beenest", "we", "us", "our"). We are not an Australian company.

We operate beenest.co, the Beenest web application, the Beenest apps and related products and services that refer to these Terms (together, the "Services"). You can reach us at hello@beenest.co.

These Terms of Service ("Terms") are a binding agreement between us and the approved provider, operator of an education and care service or other organisation that signs up for or uses the Services (the "Customer", "you"). If you accept these Terms on behalf of an organisation, you confirm that you have authority to bind it. By creating an account, clicking to accept or using the Services, you confirm that you have read, understood and accepted these Terms.

If you do not agree to these Terms, do not use the Services and stop using them immediately.

Supplemental terms or documents that we post on the Services, including the Hardware Policy for devices, form part of this agreement. The Data Processing Agreement (DPA) is incorporated into these Terms by reference.

Changes to these Terms

We may change these Terms. We tell you about a change by email and update the "Effective" date above. A change that is not solely to your benefit takes effect no earlier than 30 days after we send you the notice. If you do not agree to it, you may end your subscription by email before the change takes effect; we then refund fees you have paid for any period after the end. Changes do not apply to periods before they take effect. Changes to fees follow Section 6.

1. Our Services

Beenest is management software for education and care services (in these Terms, "centres") and the approved providers and other organisations that operate them (the "Software"). It includes in particular:

• The web application for managing centres, groups, staff and children
• A digital sign-in and sign-out terminal for recording attendance times
• The Beenest parent app for optional communication between the centre and parents or guardians
• The Beenest staff app for employees (own working hours, clocking in and out, remote and off-site check-in, sick notices, internal team chat; each feature can be switched on or off in the settings)
• Push notifications, digital wallet passes (pickup card in the parent app, staff badge) and other add-on features
• Optional features, including parent payments with a read-only bank account connection [OPEN: available in Australia?], membership fees, calendar, permissions and consents from parents by email, authorised pickup persons with a handover record, an enrolment portal (for operators) and the website builder
• AI features, within the AI credits of your plan (Sections 6 and 12)

You can use the Software on your centre's own device. An entrance tablet or other device is not included in any plan. Devices are quoted and agreed separately (Section 11).

2. Intellectual property and your data

Our intellectual property

We or our licensors own all intellectual property rights in the Services, including all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics, and all trade marks and logos contained in them. [OPEN: the DE terms name Triple Peak Software Systems LLC, Finn Lauppert von Peharnik and Kai Firschau as joint rights holders. State the ownership and licence chain for Australia here?]

Your licence to use the Services

Subject to these Terms, we grant you a non-exclusive, non-transferable licence, for the term of your subscription or free use, to access and use the Services for your centre's internal operations and to download or print a copy of any content you have properly accessed. We may end this licence only as set out in Section 16.

Your data

The data you and your users enter into the Services, and the content and reports you download, belong to you ("Customer Data"). We handle Customer Data only to provide the Services and as described in the DPA.

3. User representations

By using the Services, you represent that:

1. you have the legal capacity to agree to these Terms, and the authority to bind the Customer;
2. you are at least 18 years old;
3. you will not access the Services through automated or non-human means such as bots or scripts;
4. you will not use the Services for any illegal or unauthorised purpose; and
5. your use of the Services will not breach any applicable law.

4. Accounts and registration

You may need to register to use the Services. You must keep passwords confidential and you are responsible for activity under your accounts. Do not share login details, give each person their own account where the Software offers this, and change shared passwords regularly.

We may change a user name that is misleading, infringes the rights of others or is needed for technical reasons; we tell you beforehand. By registering, you confirm that you have read and accepted these Terms and the DPA.

5. Purchases and payment

Paid subscriptions are billed monthly at the fees shown on our pricing page or in your order. Fees are exclusive of GST; where GST applies, we add it to the invoice. All payments are in Australian dollars. [OPEN: GST registration of Triple Peak in Australia, and tax invoice details]

• Card: We bill your card monthly through our payment provider Stripe [OPEN: Stripe contracting entity]. Only Stripe receives your card details, not us. Stripe receives only contract and payment data about the Customer. It does not receive centre data and is not a sub-processor of Customer Data.
• Invoice: [OPEN: is payment by invoice (bank transfer) offered in Australia?]

You agree to keep your purchase and account information current, complete and accurate, including your email address, payment method and card expiry date.

6. Subscription, renewal and cancellation

Plans

Beenest offers a free use option and paid plans. The free option runs on your centre's own device, includes a one-time AI credit allowance that does not expire, and includes no personal support. Paid plans include personal support and a monthly AI credit allowance (Section 12). The scope, AI credits and fees of your plan are those in your accepted order or on our pricing page when you sign up. For existing subscriptions, fee changes apply only as set out under "Fee changes" below.

Billing and automatic renewal

Your paid subscription renews automatically for the renewal term stated in your order until you cancel it. If you pay by card, we charge your card monthly through Stripe. You authorise us and our payment provider to charge your chosen payment method on each renewal without asking for your approval again, until you cancel.

How to cancel

You can cancel your subscription at any time by emailing us at hello@beenest.co.

• Card payment: cancellation takes effect at the end of the calendar month if we receive it at least 14 days before that month ends.
• First month: within one month after you sign up for a paid plan, you can cancel it and we refund the fees you paid in full. After that, you can cancel with 30 days' notice to the end of the current term.
• Refund if the contract ends early: if the contract ends before the end of a period you have already paid for, we refund for each full month not yet started at least the share of the fee attributable to the monthly AI credits.

[OPEN: the card rule (14 days to the end of the month) and the general rule (30 days to the end of the term) are carried over from the DE and US terms; confirm how they relate for monthly billing.]

Fee changes

We may change subscription fees. We tell you about a fee change by email at least 30 days before it applies to you. If you do not agree, you may cancel your subscription by email before the new fee applies, without any cancellation charge, and we refund fees you have paid for any period after the end.

7. Software

The Services may include software. If an end user licence agreement (EULA) comes with it, the EULA applies. Otherwise you receive a non-exclusive, personal and non-transferable licence to use the software only in connection with the Services and under these Terms. You may copy or redistribute the software only as the EULA or these Terms allow.

We provide the Software with due care and skill and work to keep it running smoothly. Your rights under the Australian Consumer Law are not affected (Section 19).

8. Prohibited activities

You may use the Services only for the purposes we make them available for. In particular, you may not:

• circumvent or interfere with security features of the Services;
• interfere with or damage the Services or their operation;
• upload or transmit unlawful content, including viruses or spam;
• use automated systems such as bots, scripts or data mining tools;
• remove copyright or other proprietary notices;
• impersonate another user or person;
• harass or threaten our employees or service providers;
• copy, reverse engineer or otherwise tamper with software components of the Services, except as the law allows;
• enter content you are not permitted to collect or use, in particular sensitive information (such as health information) in fields not intended for it (Section 9);
• share login details (passwords, QR badges) or sign in with another person's login details.

9. Customer responsibilities

Your content and free-text fields

You are responsible for reviewing, updating and, where you wish, pseudonymising all information processed with the Software.

For free-text fields (notes, messages, chat, reasons, inputs to AI features), these rules also apply:

1. Write only what the purpose of the field requires.
2. Do not enter health information (diagnoses, suspicions, medication, injuries), information about custody or family conflicts, or evaluations of individual employees in fields not intended for it, in particular not in the team chat, in messages to parents, in hazard notes or in inputs to AI.
3. Before sharing a text with parents or publishing it on your website, check whether it contains information about other children or third parties.
4. You instruct your staff accordingly.

We do not review or filter free text. The exceptions are inputs to AI features and, if switched on, texts to parents and the public (AI data guard), both described in the AI annex of the DPA. Neither check is complete, and neither relieves you of rules 1 to 4.

Privacy notices and consents

You decide what data is entered into the Services. You are responsible for meeting your own obligations under the Privacy Act 1988 (Cth) and the Australian Privacy Principles, including giving parents, guardians and staff the collection notices they need and obtaining the consents the law, your regulatory requirements or your own policies require. This includes consent to collect sensitive information such as health information (for example allergies). State or territory health records laws may also apply to you [OPEN: which state and territory health records laws to name, if any].

Features that process photos of children, recordings of conversations or information about third parties (such as authorised pickup persons) may be used only with the required consents. The Software helps you (consent by email, signature, record of consent), but you remain responsible for lawfulness, including under state and territory surveillance devices laws on recording private conversations.

Permissions, authorised pickup persons and handovers

What the Software does. For permissions, consents by email, authorised pickup persons and the handover record, Beenest provides tools for documenting and communicating: we store what you enter and what is confirmed through the confirmation page, send confirmation emails to the address you provided, and show notices to your staff. The DPA describes the details.

What the Software does not do. The Software does not check who triggers a confirmation, whether a mailbox belongs to a parent or guardian, whether both parents or guardians agree, whether parenting orders, other court orders or protection orders exist, who a pickup person is, or whether a permission is valid. It does not prevent any handover or sign-out. We do not guarantee delivery of emails; an email counts as sent when the receiving mail server has accepted it.

Your decision. Only your staff on site decide whether to release a child. Entries and notices in the Software, such as "authorised for pickup", "other pickup person" or "new, check ID", do not replace that decision. Your staff verify the identity of every pickup person they do not know against government-issued photo identification before releasing the child.

Your obligations. You decide the content of your permission texts and the reason you ask for them, keep the email address stored for each child correct, obtain consent from both parents or guardians where required, follow parenting and protection orders, record withdrawals without delay, tick a box only when a permission has actually been given, and keep your own records of it. You offer a paper option to parents or guardians without email. The other obligations in the DPA apply accordingly.

Staff app and workplace surveillance notices

If you use the staff app, you choose in the settings which features are used. We recommend running it on centre-owned devices. As the employer, you are responsible for (a) deciding whether employees may use personal devices, and keeping such use voluntary, (b) informing employees before first use, including about the settings you chose, (c) meeting any obligations to consult employees or their representatives, and (d) archiving a person when they leave and replacing the QR badge if a device or badge is lost.

Some states and territories regulate workplace surveillance. For example, in the Australian Capital Territory the Workplace Privacy Act 2011 (ACT) requires an employer to give workers written notice before surveillance starts and to consult them (sections 13 and 14). Deciding whether those laws apply to your use of the staff app, and giving any notice they require, is your duty. We provide no device management and cannot see or wipe employees' devices. The Staff App Privacy Notice informs employees about the processing.

Enrolment portal

If an operator uses the enrolment portal, it is responsible for the content of the portal, for informing applicants about how their data is used, and for decisions about places. The Software deletes applications after the periods stated in the DPA.

Regulatory compliance

You remain responsible for complying with the Education and Care Services National Law and the Education and Care Services National Regulations as they apply in your state or territory, your service approval conditions and other laws that apply to your centre. This includes educator to child ratios, the children's attendance record (National Regulations, regulation 158), the storage and retention of records (regulation 183), notifying the Regulatory Authority of serious incidents, and employment and workplace law. The Software supports your documentation but does not make you compliant and does not replace your own checks.

10. Your centre's website

With the website builder you create your own website for your centre. We provide the technology and deliver the website at [OPEN: domain for published centre websites in Australia]. You, not we, are the operator and publisher of the website. You are responsible for:

1. any legal notices the website needs and a privacy policy for the website. [OPEN: does the Software still require a legal notice (imprint) before publishing in Australia?]
2. all content, including content suggested or designed by AI (texts, images, design). Review it before publishing.
3. the rights to uploaded images and logos and the consent of the people shown, in particular children and their parents or guardians.
4. events, blog posts and other content you approve for publication on the website.

If a claim is made against us because of content on your website, Section 21 applies. If we receive notice of clearly unlawful content, we may take the website offline temporarily; we will tell you without delay.

11. Devices

No device is included in any plan. If you want an entrance tablet, wall terminal or other device from us, we quote it separately. The Hardware Policy applies to devices we provide and forms part of these Terms. [OPEN: are devices sold, rented or loaned in Australia? The DE terms loan tablets and scanners and sell the wall terminal. The current beenest.co Hardware Policy still says tablets are loaned free of charge with a subscription, which conflicts with "not included at any price".]

Devices are standard products of their manufacturer (for example Apple Inc.). Any manufacturer warranty comes from the manufacturer. We provide devices in working condition. Subject to Section 19 and to the extent the law permits, we give no manufacturer warranty and are not liable for device malfunctions or damage resulting from them.

You are responsible for checking whether a device is suitable under the laws and rules that apply to you, and for having it certified where required. If a device we provide is damaged by physical impact caused by you or your staff (for example handling errors, dropping or improper use), you bear the reasonable repair cost or provide an equivalent replacement device.

12. AI features

Scope. The Services include optional AI features. Their scope, the data they process and how to switch them on and off are described in the AI annex of the DPA and in our Privacy Policy. We do not allow our AI providers to train models on Customer Data.

Check the results. AI results (answers, analyses, roster suggestions, email and text drafts, conversation reports, hazard and handbook suggestions, images) are generated automatically and may be incomplete or wrong. They do not replace professional review or a decision by the responsible people. You review every result before you use, send or save it or act on it.

No legal advice. AI features do not give legal advice. This includes the DPA chat, which only explains the wording of the DPA; only the text of the DPA itself is binding.

Actions. Actions suggested by the autopilot are carried out only after an authorised person confirms them; by confirming, you adopt the action as your own. The roster AI changes the staff roster directly on the instruction of the person planning it; you review the roster before using it and can undo changes. You remain responsible for educator to child ratios and for working time and break rules.

Inputs. You make sure you may use the data you type, speak or upload into AI features for that purpose. You may record a conversation only if all participants have consented beforehand. In the image generator, upload only reference images you hold the rights to and that show no people or other personal information; you are responsible for how you use the generated images.

AI credits. Using AI features uses up credits. Credits are not money and have no cash value. Your plan sets how many you get. Monthly credits are added on the first day of each month and do not carry over; one-time credits do not expire. When your credits run out, the paid AI features pause until the next top-up; the help chat and the DPA chat keep working. More credits are added only after you agree; we never bill for them automatically. Unused credits of a month are not refunded; for months after an early end of the contract, Section 6 applies.

Changes. We may change AI features, models and providers, or switch off individual features for security or operational reasons. The Software remains fully usable without AI features. If a change materially reduces the AI features of your paid plan, we tell you beforehand and you may cancel under the "Changes to these Terms" rule above.

13. Software accuracy

We work to show and calculate accurate values and to keep the Software running smoothly, but we cannot guarantee the accuracy of the data shown or calculated. You are responsible for monitoring the results of the Software. Liability follows Sections 19 and 20.

Where the Software applies jurisdiction-specific values (for example educator to child ratios for your state or territory), we maintain and update them as best we can. The version in use can be viewed in the Software at [OPEN: name of the settings screen for state and territory rules]. If your legal requirements differ from these values, please contact us.

These values are guidance and not legal advice. We strongly recommend having your individual situation reviewed before you rely on the Software.

14. Privacy, children's data and security

The DPA governs how we handle Customer Data on your behalf. Our Privacy Policy explains how we handle personal information on our website and for our own business purposes. The Parent App Privacy Notice and the Staff App Privacy Notice inform parents and staff about processing in the apps.

Service provider. We handle Customer Data only on your behalf and on your instructions, as your service provider. We do not sell Customer Data and do not use it for advertising.

Children. The Services are not directed to children, and children do not use them. Information about children is entered by the centre or by parents. We do not knowingly collect personal information directly from children.

Biometrics. We do not collect biometric information or biometric templates (such as face geometry or fingerprints). [OPEN: confirm]

Where data is stored. For Australian customers, our databases and servers are in Australia ([OPEN: AU region, e.g. Sydney]). Exceptions: email [OPEN: does email stay in the EU for Australia?], push notifications and wallet passes (delivered through overseas providers) and AI image generation (global endpoint). The full list of sub-processors and their locations is in the DPA.

Security. Data is encrypted in transit (TLS) and at rest (AES-256). Only authorised people have access, enforced by role-based access control and regular security reviews. We make regular backups. If we become aware of a security incident affecting Customer Data, we notify you as set out in the DPA so that you can assess it and meet your obligations under the Notifiable Data Breaches scheme (Part IIIC of the Privacy Act 1988 (Cth)).

Support via WhatsApp

[OPEN: available in Australia?] We may offer optional support via WhatsApp, a service of Meta Platforms, Inc. If you use this channel, do not send personal or sensitive information (for example children's names, dates of birth, health information, photos or documents with personal content). The channel is for general questions and technical support only. WhatsApp messages are processed and stored on Meta's servers, including outside Australia, under Meta's terms. For anything involving personal information, use email at hello@beenest.co or the communication features in Beenest.

15. Parent payments and bank connection

[OPEN: available in Australia?] For parent payments, Beenest provides tools for overview and matching. We are not a payment service provider, we do not receive money and we do not initiate payments. If you connect a bank account, we access it read-only; the terms of your bank also apply. You are responsible for matching payments, accepting cash and billing parents and guardians.

16. Term, suspension and termination

These Terms apply for as long as you use the Services.

We may restrict or suspend your access to the Services if you materially breach these Terms or the law, or if payment is overdue. We will tell you in writing beforehand and give you a reasonable period, of at least 14 days, to fix the issue, unless immediate suspension is necessary for compelling reasons (for example a security incident or unlawful use). We lift the suspension once the issue is fixed.

When use ends for a centre (for example after a merger of centres, the end of the contract or persistent non-payment), we may deactivate the centre. Its data, reports and settings remain available for export until deletion under Section 17. New attendance entries and sign-in to the apps are then no longer possible.

17. Data export on termination

You may export your data in a common, machine-readable format at any time during the contract and for 30 days after the contract ends or your access is suspended.

After those 30 days, we delete the data unless we are required by law to keep it. Data we must keep by law is deleted when the retention period ends.

The National Regulations require approved providers to keep certain records for set periods, some of them until a child turns 25 (regulation 183). Those periods run longer than our contract. Keeping the records for the required time is your responsibility, so export them before deletion.

Reports can be regenerated at any time during the contract from the immutable logs stored on our database servers in Australia [OPEN: AU region]. These logs are technically protected against changes by end users.

We strongly recommend that you also save reports locally. A local copy keeps complete records available regardless of your access to the Software, in particular for your record-keeping duties.

18. Changes, interruptions and errors

We work to keep the Services current, reliable and easy to use. Content may still need to be changed, removed or updated, sometimes without notice. Material changes to paid features follow the "Changes to these Terms" rule above.

We aim for high availability, but outages caused by maintenance, technical problems or outside circumstances cannot always be avoided. We announce planned maintenance in advance where possible.

The Services may contain typographical errors, inaccuracies or omissions, for example in descriptions, fees or availability. We may correct them at any time. A correction of a fee does not change the fee for a period you have already paid for.

19. Australian Consumer Law

Our Services may come with guarantees that cannot be excluded under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). Nothing in these Terms excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by the Australian Consumer Law or any other law that cannot lawfully be excluded, restricted or modified.

Where the law allows us to limit our liability for a failure to comply with a consumer guarantee, and the Services are not of a kind ordinarily acquired for personal, domestic or household use, our liability is limited, at our option, to supplying the services again or paying the cost of having them supplied again (section 64A of the Australian Consumer Law). [OPEN: confirm the s 64A limitation and its interaction with devices (goods)]

Subject to the above and except as expressly stated in these Terms, we do not give any other warranty about the Services, AI results or devices. In particular, we do not promise that the Services will be uninterrupted or error free, that emails or notifications will be delivered, or that use of the Services alone will meet your regulatory requirements.

20. Limitation of liability

Subject to Section 19 and to the extent permitted by law:

1. neither party is liable for any indirect or consequential loss, or for loss of profits, revenue or goodwill, arising out of or relating to these Terms or the Services;
2. our total liability arising out of or relating to these Terms or the Services, whether in contract, tort (including negligence) or otherwise, will not exceed the fees you paid us for the Services in the 12 months before the event giving rise to the claim. If you use only the free option, our total liability will not exceed [OPEN: amount];
3. each party's liability is reduced to the extent the other party, its staff or contractors caused or contributed to the loss.

These limitations do not apply to liability that cannot be limited by law, or to [OPEN: further exclusions from the cap, for example death or personal injury caused by negligence, fraud, wilful misconduct or gross negligence (the DE terms keep these unlimited), and breach of the DPA]. They also apply to our employees, officers, agents and subcontractors.

Decisions about releasing a child, about staffing and about compliance with your regulatory requirements are yours (Section 9). Liability for loss of data is subject to this Section; you keep your own records as described in Section 17.

21. Indemnities

By you

You indemnify us against third-party claims, and the resulting losses and reasonable costs (including reasonable legal costs), to the extent they are caused by:

• content you or your users publish through the Services, including content on your centre's website, that infringes a third party's rights or is unlawful;
• your breach of these Terms or the law; or
• your failure to give notices or obtain consents you are responsible for under Section 9.

Your liability under this indemnity is reduced to the extent we, our staff or our contractors caused or contributed to the claim. [OPEN: keep a Customer indemnity at all in a small business standard form contract (unfair contract terms risk)? The US draft also covers staff decisions on releasing a child; left out here.]

By us

We indemnify you against third-party claims that the Services, as provided by us and used in accordance with these Terms, infringe that third party's intellectual property rights in Australia, and the resulting damages and reasonable costs finally awarded or agreed in settlement. This does not apply to claims caused by Customer Data, by your modifications, by combination with products we did not provide, or by AI results you chose to use. [OPEN: confirm scope of the Beenest indemnity]

Procedure

The party seeking indemnification notifies the other promptly in writing, allows it to control the defence and settlement (no settlement that imposes obligations on the indemnified party without its consent), and provides reasonable cooperation at the indemnifying party's cost.

22. Force majeure

Neither party is liable for failure or delay in performance caused by events beyond its reasonable control, such as natural events, strikes, government orders, outages of third-party networks or other unforeseeable circumstances. This does not excuse payment obligations for Services actually provided.

23. Use of our website

Our website beenest.co provides general product information about Beenest. Nothing on the website is legal, insurance or compliance advice, and nothing on it guarantees coverage, regulatory outcomes or suitability for a specific state or territory. We may update its content at any time, and product features described on it may change before or after purchase. Section 19 applies.

24. Electronic communications and signatures

By visiting the website, sending us emails or completing online forms, you agree to communicate with us electronically. You agree that agreements, notices and other communications we provide electronically satisfy a requirement that they be in writing, to the extent the Electronic Transactions Act 1999 (Cth) and the corresponding state and territory laws allow.

You agree to the use of electronic signatures, contracts and orders, and to electronic delivery of notices, policies and records of transactions. Clicking to accept these Terms is your agreement to them.

25. Governing law and disputes

Informal resolution

Before starting legal proceedings, both parties will try to resolve a dispute informally for 30 days after written notice of it. This does not prevent either party from seeking urgent interim relief.

Governing law

These Terms are governed by the laws of [governing law, state or territory], Australia. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Courts

If a dispute cannot be resolved informally, the [courts of that state or territory] and the courts that may hear appeals from them have jurisdiction [OPEN: exclusive or non-exclusive jurisdiction].

26. Miscellaneous

These Terms, the DPA, your order and all supplemental policies referred to in them form the entire agreement between you and us about the Services.

If we do not enforce a right, that is not a waiver of it. We may transfer our rights and obligations under these Terms to a successor that takes over the Services, on notice to you, if your rights under these Terms are not reduced. You may end your subscription if you object to the transfer.

If any provision of these Terms is held invalid or unenforceable, it is read down to the extent necessary, or severed if it cannot be read down, and the remaining provisions remain in effect. These Terms create no employment, partnership, joint venture or agency relationship between you and us.

27. Contact

For questions or complaints, contact:

Triple Peak Software Systems
[registered address]
hello@beenest.co