Last Updated: 15 April 2016
Version 2
These terms allow use of Pond by Educators and Service Providers, whether they access Pond via the Pond Website or through an Integrated Application. Currently Pond is not open for use by students, other than as public view users. Public view users can only view specific content selected to be made public by the contributor.
This document forms part of our agreement with each customer using this Product. The General Terms and other documents that also form part of the agreement, are available on the Legal and Policies section of our website.
We’ve tried to ensure these terms are straightforward and fair, and in some cases have included notes to provide context. Please feel free to email us if you have any questions or suggestions.
Terms defined in the General Terms have the same meaning in these Product Terms. In addition, unless the context requires otherwise:
Your Educator account in Pond may be related to any Educational Organisation that you are a staff member of. Each account is subject to our approval and each relationship with an Educational Organisation is subject to the approval of the Educational Organisation’s authorized approver (who may confirm your staff status with the principal, CEO or equivalent of the organisation concerned). You must notify us as soon as you stop working for an Educational Organisation, by using the feedback tool on the Pond Website or by contacting our helpdesk (see our website for details). If you move to another Educational Organisation, you should apply to have your account related to that Educational Organisation.
As an Educator:
You may apply on the Pond Website for a Service Provider account if you supply educational goods or services in New Zealand. Your application is subject to our approval. In addition to your own account, you must establish an additional account for each individual Pond User who uses Pond under the “umbrella” of your account. You are responsible for all acts and omissions of your Pond Users in connection with Pond, as fully as if they were your own acts and omissions.
As a Service Provider you must not promote any product or service that competes with Pond.
Any Pond User may deactivate their own account at any time. In addition, if you have an umbrella account you can deactivate the accounts of any of your individual Pond Users or your entire umbrella account (which deactivates the accounts of all of your Pond Users).
We may deactivate your account (or any account under its umbrella):
If your account (or any account under its umbrella) is deactivated, you will not be able to access Pond via that account from anywhere in the Pond Ecosystem, but Your Content and profile for that account will still be visible to other Pond Users.
If you would also like us to remove Your Content or profile from view in the Pond Ecosystem for any account, you should request that of our helpdesk (see our website for details). We will fulfil all such requests, usually within 5 Business Days. However, although the material will be removed from view, the data will remain in our systems in accordance with clause 6.4 (System Retention).
We may lift any deactivation of your account (or any account under its umbrella) if you demonstrate to our reasonable satisfaction that the reason for us deactivating the account has been resolved and will not be repeated.
If your account is reactivated after being removed from view in Pond, the state of Your Content and profile will revert back to the state they were in before your account was deactivated, subject to the removal or deletion of Your Content as described above. But if your account has been permanently deleted from our systems, it cannot be reactivated.
To terminate these Product Terms you must deactivate your account (and all accounts under its umbrella) in the Pond Website. Terminating these Product Terms, but does not affect:
Note: We hope that the Pond Ecosystem will significantly improve educational outcomes in New Zealand. To help that happen, there are some things below that you need to commit to.
The Pond Ecosystem comprises the Pond Website together with Integrated Applications (specifically those parts of Integrated Applications that display and/or interact either with User Content or with Pond services). We only select an application for integration with Pond if we consider the application is suitable. We also require everyone integrating with Pond to agree to our Pond Integration Product Terms.
Your Content will be made available throughout the entire Pond Ecosystem, including to all Integrated Applications. While you are unable to specify which particular Integrated Applications access Your Content:
We will require each Integrated Application not to cache or store your User Content other than for reasonable periods in order to provide its services.
As we need to know who does what in the Pond Ecosystem, each Pond User account is personal to a single individual. You must protect your password and not allow any other individual to access Pond via your account (or any account under its umbrella). You are solely and fully responsible for all activities that occur under your account(s).
Pond Users may list user-generated content (Catalogue Items) in Pond for others to use, provide feedback, rate, etc. Catalogue Items include “learning ideas”, “buckets”, “resources” (ie descriptions of educational products or services), “discussions” and “groups”.
You must ensure that each Catalogue Item is appropriate for Pond. For example, each Catalogue Item must:
If you are a Service Provider you may:
Where there are multiple providers of a similar product or service, each Service Provider must attribute themselves in the name they choose (eg Product X by Company Y or Product X by Company Z). Whenever you add, claim ownership of, claim association with or name a Catalogue Item, you represent and warrant to us that you have, and will continue to have, all of the necessary rights and approvals to do so in compliance with all applicable laws.
If you’d like to dispute the name, ownership or association of any Catalogue Item, you can contact us using the mechanisms provided in the Pond Website or by contacting our helpdesk. We will then follow a resolution process to resolve the matter.
In order to meet the above requirements we reserve the right, at our sole discretion, to:
In order to use Pond, you must:
We will provide the Pond Website and any Integrated Applications that we control, using reasonable care and skill. But we don’t guarantee that they will be:
In addition, the features of the Pond Website and any Integrated Applications that we provide may change over time. If we think any change of features will have a significant detrimental impact on Pond Users, we will give them advance notice of the change and the date it will come into effect (eg by notice in the Pond Website itself or via an email).
We are not responsible for any Integrated Applications that are controlled by third parties.
The Pond Ecosystem includes content that is posted or made available by Pond Users (User Content) including by our Pond Users. User Content may be posted via message boards, chat areas or other means, and may include Catalogue Items, profiles, blogs and comments in the form of text, images, videos and files. But User Content does not include:
Note: We want User Content to be used and re-mixed to help in the classroom, but only if intellectual property rights have been respected. So, where you are allowed to use content outside of the Pond Ecosystem, the terms on which you can use the content will be provided together with the content in the Pond Ecosystem. Where specific licence terms are not provided with particular content in the Pond Ecosystem, that content may only be viewed in the Pond Ecosystem (the N4L and Pond logos are an example of that).
Whenever you want to do anything with User Content you must ensure you have all necessary rights to do those things (such as permission from the content owner or rights under the Copyright Act 1994 or other legislation) and comply with all terms on which Portal Content is made available to you.
You can’t do anything with User Content (including sharing the content in the Pond Ecosystem or using the content outside the Pond Ecosystem) unless doing that has been specifically authorised. That authorisation may be given in the Pond Ecosystem (for example by way of a licensing note accompanying the content) or you may have to contact the owner of the User Content directly for their authorisation. If no specific authorisation is given in relation to particular User Content, that content is only available for you to view.
We do not endorse, approve or pre-screen any content that is made available in the Pond Ecosystem by others (including where we “frame” content in the Pond Website from elsewhere on the internet). We make no promises or guarantees in relation to that content, including as to its adequacy, accuracy, completeness, non-infringement or freedom from anything harmful or inappropriate.
The Pond Ecosystem may let you use links to access content that is outside of the Pond Ecosystem. Links from the Pond Ecosystem to other websites or services (including text or image based links or website framing) do not constitute our endorsement of those websites or services, or their content, whether those links have been posted by us or Pond Users. We do not control such sites or services, and are not responsible or liable in any way for their content or availability or any problems with any links to those sites or services. The use of any website or services controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites or services, and not by our terms.
We have a Takedown Policy to help address any infringing, defamatory or other inappropriate User Content. Anyone may ask us to remove User Content in accordance with that policy. Regardless of whether we received a request under our Takedown Policy, we reserve the right (but have no obligation) to remove any User Content that we consider, in our sole discretion, is contrary to the Agreement or is otherwise inappropriate or exposes us or any Pond User to any risk.
Whenever you post or make content available in the Pond Ecosystem (Your Content), you personally license that content on the terms below. If you are working for an Educational Provider, Service Provider or other organisation, its policies may apply to the material you post to or make available in the Pond Ecosystem and may limit the type of material that you are able to submit.
Note: Your Content may include teaching materials that you posted in the Pond Ecosystem, or your comments and feedback in the Pond Ecosystem on educational resources. You licence all of Your Content to us as below. In some cases, you may have the opportunity to licence Your Content to others to use outside the Pond Ecosystem – the available licensing options will be provided for you to select when you post the content in the Pond Ecosystem. In all cases you need to ensure that Your Content and the licensing options you select are not unlawful or infringing.
We do not own Your Content, but need rights to Your Content so that the Pond Ecosystem can operate effectively. However we recognise that electronic files that you upload to the Pond Ecosystem (Your Files) need more restrictive licence terms than other content. Accordingly, except in relation to Your Files, you grant us a non-exclusive, irrevocable, sublicensable licence to:
In relation to Your Files, you grant us a non- exclusive, irrevocable, sub-licensable licence to host and store Your Files, index Your Files’ content, and display Your Files in the Pond Ecosystem.
In addition, our Privacy Policy governs the way we collect, use and disclose your personal information.
The Pond Ecosystem may give you the opportunity to license Your Content for use outside the Pond Ecosystem. The Pond Ecosystem identifies these opportunities by presenting licensing options for selection by you. Licensing options may include:
If the wrong option was selected, you may ask us to remove the content under our Takedown Policy, however anyone accessing Your Content before it is removed may continue to do so on the terms applying when they first accessed it. A default option will apply if you make no active selection of a licensing option. If your account is linked to an Educational Organisation or Service Provider, that organisation may specify the option(s) available to you.
You represent to us that use of Your Content in accordance with the above terms, does not contravene any laws or infringe anyone’s rights.
Removing Your Content from the Pond Ecosystem, means Your Content can no longer be seen by Pond Users. However Your Content will continue to be in our systems, and in systems supporting Integrated Applications, as described in clause 6.4 (System Retention).
You may remove certain items of Your Content from the Pond Ecosystem, by using the functionality available on the Pond Website. If you would like specific items or all of Your Content removed from the Pond Ecosystem, you should request that of our helpdesk (see our website for details). We will fulfil all such requests, usually within 5 Business Days.
In addition, Your Content may be removed from the Pond Ecosystem by us:
In some cases the Pond Ecosystem may indicate where Your Content has been removed, in order to preserve an experience that is understandable by other Pond Users.
Your Content may have been copied or re-shared by other Pond Users. Where this occurs, you cannot remove the copied or re-shared content from the Pond Ecosystem. You may request that we “take down” the copied or re-shared content under our Takedown Policy, however we will assess each request on its merits and will not automatically remove such content solely because you requested it.
When Your Content is removed from the Pond Ecosystem, it will not necessarily be deleted from our systems, or from systems supporting Integrated Applications, as the data may still exist in repository files, backup files and/or log files.
In relation to Integrated Applications, Your Content may only be cashed or stored in Integrated Applications as specified in clause 4.1 (The Ecosystem).
In relation to our own systems, we may permanently delete your Pond profile and/or all or any of Your Content from our own systems in accordance with our file retention practices where that data has been removed from view in the Pond Ecosystem. Unless required otherwise by law, we expect to hold Your Content in our Pond repository files for at least 7 years for audit and investigation purposes. However we may continue to hold Your Content indefinitely if it remains of value to Pond Users.
We are not a content storage provider. Except as required by law, we have no obligation to return Your Content to you.
Clause 7 (Liability) of the General Terms do not apply to these Product Terms. Instead:
Some User Content is provided by Crown Entities or Government departments. To the maximum extent permitted by law, those entities will have no direct or indirect liability of any kind to you in connection with any error or omission in their content. This clause is intended to be for the benefit of and enforceable by those entities, but the Agreement may be amended without their consent.
The Pond Ecosystem enables you to browse, locate, rate, list and access the products and services (Third Party Services) of third parties (Third Parties). Whenever you engage with a Third Party, or use Third Party Service, it is at your own risk and may require you to enter into a separate agreement with the Third Party. We are not responsible or liable in any way for any Third Party or Third Party Services (even if we have promoted a Third Party Service). We are also not a party to any agreement or arrangement for Third Party Services, and do not act on behalf of you, any Educational Provider, or the Third Party. It is not our responsibility to make sure that any Third Party Service you use, and any related terms and conditions, are fit for purpose and adequately protect your interests and those of your Educational Provider.
As we are not a party to any contract between you and a Third Party. You agree:
This clause 8 (Use of Pond by Service Providers) only applies to Service Providers. In this clause, a Service Provider’s Customer means any person or organisation entering into a contract with the Service Provider for its products or services.
Pond enables Pond Users to rate and comment on products or services, some or all of which you may or may not agree with. We will not be liable to you for or in connection with any negative or adverse Pond User ratings or comments on your products or services published or made available via the Pond Ecosystem.
Pond may also make information available to Pond Users about your products or services, including their availability and performance. We may use this information, along with the ratings and comments, to determine the placement or marketing of your products or services. However, we reserve the right to determine this in our sole discretion.
If anyone using your Content, including us, any Educational Provider or any Pond User (each your Licensee) is subject to a claim by a third party that your Licensee’s publication, use or possession of Your Content infringes that third party’s rights, defames that third party or breaches any other laws (Claim), then regardless of anything to the contrary in the terms on which Your Content was licensed:
However, you are not required to:
Were a Claim is brought against us, we will ensure that we notify you promptly following us becoming aware of the Claim and that it relates to Your Content.
This clause is for the benefit of, and enforceable by, all of Your Licensees. However, the Agreement may be varied by you and us without obtaining the consent of any other of Your Licensees.
You (and not us) are responsible for your products or services and for any consequences of your providing, promoting or making available your products or services and for collecting your fees. You must:
You indemnify us and our officers, employees, and contract staff against any liability, losses, damages, costs or expenses we or they incur in connection with any claim by a third party to the extent the claim relates to your products or services and arises as a result of your own act or omission (in particular you are not required to indemnify us to the extent the liability, loss, damage or expense arises as a result of our own breach or unlawful conduct). We will promptly notify you of any claim, use reasonable endeavours to mitigate the amount payable by you under this clause and co-operate with you in defending or settling the claim. You will provide reasonable assistance in defending or settling the claim (at your expense). You can (at your own cost) be represented at all negotiations and proceedings related to the claim.
Your engagement with your Customers is at your own risk. Unless we expressly agree otherwise, we do not act on behalf of you or your Customers and it is your responsibility to contract with or license your Customers in relation to your products or services. We are not a party to any arrangement between you and your Customers and those arrangements are not affected by the term or termination of the Agreement we have with you.
However, you must make sure that any licence or agreement between you and your Customers for your products or services does not conflict with the Agreement we have with you.
We are not responsible or liable in any way for anything your Customers do or do not do in relation to you or your products or services (including any failure to pay your fees or failure to comply with any licence or agreement). If any problems or claims arise in relation to your products or services, this is between you and your Customers, and is not for us to resolve. However, this does not in any way prevent us from exercising any of our rights in relation to the Agreement.
We do not grant you any rights to any of our trademarks, logos, business names, product names, domain names or other brand features or those of our suppliers or any Service Providers (Our Brand Features), other than the right to reasonably use our logo(s) as supplied by us to use for linking to our Website or the Pond Website. In all other cases you must obtain our written permission to use Our Brand Features, by contacting our Marketing Manager at info@n4l.co.nz. In most cases, a decision on your requested use will be given within 3 Business Days.
In using Pond you may supply us with trademarks, names, logos, icons, titles, product descriptions, screenshots and other brand features related to you or your products or services (Your Brand Features). You license Your Brand Features to us as follows:
In respect of any of our Products, the above licenses will cease upon termination of your use of Pond. Subject to our rights under these terms in respect of Pond User ratings and comments, we will not knowingly use Your Brand Features in a manner that is prejudicial to your reputation.
Except for any rights that you grant to us under the Agreement, we do not obtain under the Agreement any rights, title or interest in or to any intellectual property rights in your products or services or Your Brand Features.