Terms of Service

Terms of Service

1. Introduction

1. Welcome to Kite.site, operated by Betterlabs Pty Ltd, trading as Fly With Kite Site ("Kite.site"). Kite.site offers an ecommerce platform designed to streamline the engagement process between digital creators and brands for the creation and delivery of user-generated content (UGC) video advertisements.

2. By accessing or using our services ("Services", as defined in clause 2), you agree to be bound by these Terms of Service ("Terms"), our Privacy Policy, and any other applicable policies. 

3. These Terms form the entire agreement between you and us in relation to the Services. To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty in entering into these Terms.

4. If you do not agree with any part of these Terms, you must discontinue use of our Services.

2. Services Description

1. Kite.site provides tools that enable Digital Creators ("Creators") to set up content shops, manage profiles, and offer services such as video production and photography. Brands ("Clients") can engage Creators for the provision of their services, negotiate packages, and submit project briefs. 

2. The platform facilitates these interactions but is not a party to any contract directly between Creators and Clients. 

3. Any new features or tools which are added to the current Services will also be subject to these Terms of Service. 

3. Account Registration and Use

1. Account Creation: To use the Services, Creators and Clients must register for an account ("Account") by providing accurate and current information where required.

2. Account Responsibilities: You are responsible for keeping your account details, including any passwords and usernames, secure. Kite.site employs security measures to protect your account, which are detailed in our Security Practices policy. Kite.site cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account. 

4. Payments and Financial Terms

1. Payment Processing: All payments between Clients and Creators through Kite.site are processed via Stripe Connect. Creators are responsible for setting up and maintaining their Stripe Connect accounts to receive payments.

2. Financial Transactions: Clients are required to make payments through Kite.site by credit card or other approved methods. Kite.site facilitates these transactions but is not a party (or an agent or representative of a party) to the contracts, agreements and licences formed between Clients and Creators.

3. It is your responsibility to ensure that:

   1. you provide us with such financial information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and

   2. you cooperate with us in all matters relating to the Services.

4. If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation under clause 4.3 ("Your Default"):

   1. we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services;

   2. we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services as a result of Your Default; and

   3. it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.

5. Refunds and Dispute Resolution: Our policy on handling disputes and refunds are available in our Financial Disputes Resolution Policy.

5. Responsibilities of Creators and Clients

1. Creators are solely responsible for the goods and/or services that they may provide Clients through the use of the Services (including description, price, fees, tax that you calculate, required legal disclosures, regulatory compliance, offers or promotional content). 

2. You may not use the Services for any illegal or unauthorised purpose.

3. You must not, in the use of the Services, violate any laws in your jurisdiction (including but not limited to copyright laws) and the laws applicable to you in your Client's jurisdiction.

4. You will comply with all applicable laws, rules and regulations (including but not limited to obtaining and complying with the requirements of any license or permit that may be held by you) in your use of the Services and your performance of obligations under these Terms. 

6. Intellectual Property Rights

1. Ownership and Licensing: Creators retain ownership of the content they produce and provide to Clients. Clients obtain usage rights to the content created by Creators in accordance with the contract formed between Clients and Creators.  Creators and Clients must enter into the Licensing Agreement (provided in this link [Better Labs to insert link to Licensing Agreement]). Creators and Clients may agree separately to enter into their own agreement governing the licensing of any content produced by the Creator for the Client.

2. Promotional Use: Creators grant to Kite.site a revocable and royalty free licence to use their names and content for marketing purposes. Creators may opt-out of having their names and content used for marketing purposes by Kite.site through their Account settings available through Kite.site.

7. Non-Involvement in Disputes

1. Kite.site is a software application that facilitates transactions between Creators and Clients and any transaction made through the Services is directly between Creators and Clients (and not through Kite.Site, as agent or otherwise).

2. Kite.site does not participate in or resolve disputes arising between Creators and Clients. 

3. Parties involved in a dispute should seek independent legal advice or settle the dispute through alternative dispute resolution methods at their own cost. 

8. Data Policy and Privacy Act and GDPR Compliance

1. Kite.site is committed to protecting the privacy and security of your data. We comply with all applicable data protection laws including the Privacy Act 1988 (Cth) and General Data Protection Regulation ("GDPR").

2. We will use any personal information you provide us to:

   1. provide the Services;

   2. process payment for the Services; and

   3. inform you of similar products or services that we provide. You may stop receiving this information at any time by notifying us in your Account settings.

3. Data Subject Rights: Users of Kite.site have the right to access, correct, delete, and request the portability of their data. Requests to exercise these rights can be made directly through the user's account settings or by contacting our Data Protection Officer.

4. Data Protection Officer: We have appointed a Data Protection Officer to oversee compliance with applicable data protection laws and to address any queries or concerns relating to the processing of personal data. The Data Protection Officer can be contacted at dpo@kite.site.

5. Further information is provided in our policy [Security Practices for Kite.site].

9. Subscription Fees (Creators only)

1. Creator Fees: To activate and maintain a Kite.site account, Creators must subscribe to Kite.site at a cost of USD$29 per month (Subscription Fee). There is no charge for establishing a Kite.site account. We do not impose any transaction fees on orders generated through Kite.site, however Stripe Connect applies its own payment processing fees. For more information on managing subscriptions, please refer to our [Subscription Management Guide].

2. Client Fees: Clients are not charged any fees to use Kite.site. 

3. Billing: Subscription Fees are paid in advance and will be billed in 30-day intervals ("Billing Date"). You will be charged on each Billing Date for all outstanding Subscription Fees that have not previously been charged. Subscription Fees will appear on an invoice which will be sent to the relevant Creator's email address provided to us upon signing up for an Account. 

10. Affiliate Program

1. Creators participating in our Affiliate Program can earn commissions on referrals according to a multi-tier system. All participants must adhere to the terms of the Affiliate Program as outlined in our separate [Affiliate Program Terms].

11. Limitations of Liability

1. General Limitations: Kite.site provides its Services "as is" without any express or implied warranties. We do not guarantee the continuous, uninterrupted or secure access to our services, and operation of Kite.site may be interfered with by numerous factors outside of our control. 

2. Kite.site is not liable for any direct, indirect, incidental, special, consequential, or exemplary damages arising from your use of the Services, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses.

3. Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.

4. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.

5. We are exposed to the risk of claims from third parties due to your misuse of Kite.site and the Services. You agree to indemnify and hold Kite.site, its related parties and their respective officers, harmless from any claim or demand, including reasonable legal costs, made by a third party due to or arising out of:

   1. your material breach of these Terms or the documents it incorporates;

   2. your violation of any law or the rights of a third party; or

   3. any transaction between Creators and Clients, to the extent there is a claim or demand regarding a dispute a refund, fraudulent transactions, alleged or actual violation of applicable laws, or your breach of the Terms. 

6. Without limiting the above, we are not liable for the following:

   1. Downtime: Kite.site is not liable for any disruptions to the Services, including without limitation, interruptions, delays, or the unavailability of the Services at any time, including those resulting from scheduled maintenance or software updates.

   2. Data Loss: Kite.site is not responsible for the deletion, corruption, or loss of any data or information submitted to Kite.site, whether resulting from unauthorised access, technical disruptions, or other causes.

   3. Security Breaches: While Kite.site employs reasonable security measures to protect against unauthorised access to or unauthorised alteration, disclosure, or destruction of data, we cannot assure the security of any information transmitted to us over the Internet and accept no liability for any unintentional disclosure.

   4. User Interactions: Kite.site is not responsible for the actions or interactions between Creators and Clients. This includes disputes between Creators and Clients and the quality, safety, or legality of the services arranged through Kite.site.

   5. Work Produced: Kite.site does not endorse any content created and shared on the platform by Creators. The responsibility for ensuring the rights, compliance, and legality of the content resides solely with the Creator. The Creator will indemnify Kite.site for all liabilities, losses, damages, claims, proceedings or reasonable expenses incurred by Kite.site as a result of proceedings bought by a third party alleging that Kite.site has disclosed any confidential information or infringed upon any intellectual property rights, copyrights or trademarks held by that third-party.

   6. Business Events: Kite.site disclaims all liability associated with the management of business activities, negotiations, contracts, and other dealings conducted between Creators and Clients on the platform.

7. By using Kite.site, you acknowledge that you understand and agree to assume these risks and agree not to hold Kite.site liable for any related issues that may arise.

12. Confidentiality

1. We will not disclose to any person any confidential information concerning your business, affairs, customers, clients or suppliers, except:

   1. where the information is in the public domain;

   2. if we are required to disclose the information by law;

   3. where the disclosure is permitted by these Terms;

   4. where disclosure is required to be made to our officers, employees and professional advisers in order for us to perform the Services, in which case we ensure that such persons will keep the information confidential; or

   5. where you have consented in writing to our disclosure of such confidential information.

13. Termination

1. Without affecting our rights under the Terms, we may suspend the performance of the Services, or terminate the Services with you with immediate effect by providing you with written notice if you:

   1. fail to pay the Subscription Fee and have not done so for more than 30 days after the Subscription Fee is due to be paid;

   2. you commit a material breach of any of the terms of the Terms and fail to remedy that breach within a period of 14 days after receiving written notice of the breach.

2. We may suspend or terminate your Account and the Terms for any reason, by giving you reasonable notice (unless otherwise required by law), including if we suspect that you have engaged in fraudulent activity in connection with the use of the Services.

3. Termination does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.

4. You may cancel your Account and the Terms at any time by contacting support@kite.site and then following the specific instructions indicated to you by Kite.site. 

5. Upon termination of the Services by either party for any reason:

   1. Kite.site will cease to provide you with the Services and you will no longer be able to access your Account;

   2. unless otherwise provided in the Terms, you will not be entitled to any refunds of any Subscription Fees, pro rata of otherwise;

   3. any outstanding balance owed to Kite.site for your use of the Services to the date of termination will immediately become due and payable in full; and

   4. your Account will be deleted. 

14. Force Majeure

1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Force Majeure Event).

2. If a Force Majeure Event occurs:

   1. we will contact you as soon as reasonably possible to notify you of the Force Majeure Event; and

   2. our obligations under the Terms will be suspended for the duration of the Force Majeure Event. 

3. You may cancel, or we may terminate the Services, if the Force Majeure Event continues for more than 90 days. 

15. Amendments to Terms

1. Kite.site reserves the right to amend these Terms at any time. Any amendments will be effective immediately upon posting the revised Terms on Kite.site. Your continued use of the Services after any such changes shall constitute your consent to such changes.  You are entitled to terminate your Account if you do not accept the variation to the Terms. 

16. Assignment and novation

1. We may assign or transfer our rights and obligations under the Terms to another entity by posting the details of the assignment on our webpage or providing you with written notice.

2. You may not assign or transfer your rights and obligations under the Terms unless we have expressly consented in writing. 

17. Severability

1. If a part of these Terms becomes invalid or unenforceable, it is severed to the extent that the part is invalid or unenforceable, and severance does not materially alter the nature or effect of the parties' obligations under the Terms.  

18. Relationship

1. The Terms are between you and us. No other party has the right to enforce the Terms.

19. Jurisdiction and Governing Law

1. These Terms shall be governed by and construed in accordance with the laws of Western Australia. Any disputes arising from these Terms will be subject to the exclusive jurisdiction of the courts of Perth, Western Australia and the Commonwealth of Australia

20. Contact Information

For any inquiries or concerns regarding these Terms, please contact us at:

• Address: L1 191 St Georges Tce, Perth WA 6000, Australia

• Email: support@kite.site

By registering for and using Kite.site, you affirm that you have read, understood, and agree to be bound by these Terms of Service, including any future modifications.

Referenced Policies:

Security Practices for Kite.site

1. Introduction

At Kite.site, we prioritise the security and integrity of our platform and the data of our users. This document outlines the security measures and practices we employ to protect our users and their information. By using Kite.site, you agree to adhere to these security practices as part of our commitment to providing a safe and reliable service.

2. Security Measures

1. Data Encryption: 

   1. All data transmitted between users and Kite.site is encrypted using SSL/TLS technology to ensure that personal and financial information remains secure and private during transmission.

   2. Sensitive data stored on our servers, such as passwords and payment information, is encrypted using advanced encryption standards.

2. Secure Payment Processing: 

   1. All financial transactions are processed through Stripe Connect, which complies with the highest industry security standards, including PCI DSS compliance.

   2. Kite.site does not store credit card details on our servers to minimize risk and ensure compliance with payment card industry standards.

3. Access Control: 

1. Access to user data within Kite.site is restricted through the use of role-based access controls. Only authorized personnel have access to sensitive data, and their activities are logged and monitored.

2. Users are responsible for maintaining the confidentiality of their account credentials. Kite.site encourages users to choose strong, unique passwords for their accounts and to change these passwords regularly.

4. Regular Security Audits: 

1. Kite.site conducts regular security audits and vulnerability scans to identify and mitigate potential security risks. These audits are performed by internal security teams and, periodically, by independent security firms.

2. We continuously monitor our systems for unusual activities and potential breaches, and we implement updates and patches promptly to address any vulnerabilities.

5. User Education and Awareness: 

1. Kite.site provides users with information and resources on best practices for securing their accounts and protecting their personal information.

2. We encourage users to be vigilant and to report any suspicious activities or perceived security weaknesses in Kite.site’s platform.

6. Incident Response Plan: 

1. In the event of a security breach, Kite.site has a formal incident response plan in place to quickly address and mitigate the impact of the breach.

2. Affected users will be notified in accordance with applicable laws and regulations, and we will provide timely updates as we resolve the issue.

3. Best Practices for Users

   1. Secure Your Account: Use strong, unique passwords for your Kite.site account and change them regularly. Enable two-factor authentication (2FA) if available.

   2. Monitor Your Account: Regularly review your account activity for any unauthorized or suspicious actions. Report any unusual activity to Kite.site support immediately.

   3. Be Cautious with Emails: Be wary of emails asking for your personal information or directing you to a website where you are asked to provide personal information.

   4. Secure Your Devices: Ensure that any device you use to access Kite.site is secured with up-to-date antivirus software and a firewall.

4. Contacting Us

   1. If you have any questions about our security practices or need assistance with your account security, please contact us at:

Email: security@kite.site

Support Page: Kite.site Security Support

Kite.site is committed to continuously improving our security practices and keeping our platform safe for all users. We welcome feedback and suggestions from our community on how we can enhance our security measures.