Child Care Center Terms of Service
TERMS OF SERVICE
FOR CHILD CARE CENTERS
Last Updated: May 19th, 2020
Please read these Terms of Service (these “Terms”) carefully because they govern your use of SmartcareOS, LLC’s (“Smartcare,” “us” or “we”) Services defined in Section 4 (“Services”).
- AGREEMENT TO TERMS. By clicking “Sign Up” or by using the Services, you agree to these Terms, including the Agreement to Arbitrate set forth in Section 15. This agreement is between you (either an individual or a company or other legal entity providing child care services) (“Center”), and Smartcare. You represent and warrant that you have the authority to bind the Center to these Terms, and, in such event, “you” and “your” will refer to that Center.
- CHANGES TO TERMS OR SERVICE. We may modify the Terms at any time, in our sole discretion. If we do so, we will provide notice to you of modifications, either via the Site, the App or by some other method of communication. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have notified you of the modified Terms, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all, or any part of the Services, at any time and without notice, at our sole discretion.
4.1 Implementation. To implement the Services for you, we will provide access to guides, training videos and other materials to help you setup and learn to use the Service. We may, at our discretion, provide a dedicated center service manager for up to six (6) weeks of training, who will communicate with you remotely via phone, web conference, or other means, but who will not visit your premises, and we will provide access to Smartcare’s online support feature. If you have paid for an on-site implementation, we will provide up to four (4) hours of in-person implementation help at your premises, a dedicated center service manager for six (6) weeks of training, and access to Smartcare’s online support feature. If we determine that your implementation is complete upon successfully entering the requisite information into the Services, we may, at our discretion, provide training to use the Services to (i) you; (ii) your employees who are authorized by you to use the Services on your behalf (“Authorized Users”); and (iii) your child care customers (“Parents”). We may also, at our discretion, provide assistance to you to ensure that any Service Device(s) provided to you are properly functioning. Upon determining that an implementation is complete, we will provide Authorized Users of all levels of employment access to support via email and through support functions in the App, while Authorized Users at the director level will have access to the customer service team.
4.2 Center Management. Inclusive of (i) website located at https://smartcare.com/ (the “Site”); (ii) mobile device application (“App”); and (iii) child care management-related services (including invoicing and payment services) we provide accessible via our Site and our App, as well as your use of any device provided to you by Smartcare (“Service Device”).
4.3 Classroom Management. Inclusive of (i) website located at https://preschool2me.com (the “Site”); (ii) the “Preschool2Me” mobile device applications (“App”); and (iii) classroom management-related services (including lesson plans and assessments) we provide accessible via our Site and our App, as well as your use of any device provided to you by Smartcare (“Service Device”).
4.4 KidKiosk. Inclusive of (i) website located at https://kidkiosk.com (the “Site”); (ii) the “KidKiosk” mobile device application (“App”); and (iii) attendance management-related services we provide accessible via our Site and our App, as well as your use of any device provided to you by Smartcare (“Service Device”).
4.5 Use. Subject to these Terms, during the Term (as defined below) you may access and use the Services for your internal business purposes and such access and use is expressly limited to your Authorized Users. The Services may only be accessed and used by Authorized Users who have agreed to abide by these Terms to access and use the Services solely for the purposes of performing their job functions for you. You are responsible for the use of the Services by your Authorized Users, and their compliance with these Terms. You will only allow the use of the App on compatible devices that are supported by Smartcare. You will provide Smartcare’s service team (including your dedicated center service manager, if applicable) with reasonable assistance required to implement the Services for you and to provide training.
4.6 Obligations. You agree not to: (i) resell, sublicense (except to Authorized Users, and Parents using a sign-in kiosk for the Services), or otherwise make the Services available to any third party; (ii) deactivate, impair, or circumvent any security or authentication measures of the Services; or (iii) modify, alter, decompile or reverse engineer any part of the Services. You agree to comply with all laws and regulations applicable to your business and your use of the Services, including laws and regulations relating to child care, privacy and third-party proprietary rights.
- YOUR CONTENT
5.1 Your Responsibility. You and Authorized Users may upload data, information, images and other materials to use with the Services (“User Generated Content” or “UGC”). Under no circumstances will we be liable in any way for any UGC. This means that you, not Smartcare, are entirely responsible for all UGC that you post and that you can be held personally liable for comments that are defamatory, obscene, or libelous, or that violate these Terms, an obligation of confidentiality, or the rights of others. If any part of the UGC you post is not your original work, it is your responsibility to obtain any necessary permission(s) to post it. Because we do not control the UGC posted on or through the Services, we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that UGC. You also agree and understand that by accessing the Services, you may encounter UGC that you may consider to be objectionable. We have no responsibility for any UGC, including without limitation any errors or omissions therein. We are not liable for any loss or damage of any kind you may claim was incurred as a result of the use of any UGC posted, emailed, transmitted or otherwise made available on or through the Services. The UGC posted on or through the Services expresses the personal opinions of the individuals who posted it, and does not necessarily reflect the views of Smartcare, or any person or entity associated with Smartcare.
5.3 Your Deletion of UGC. You may remove your UGC by canceling your account or by contacting us at the information below and asking us to remove it. However, in certain instances, some of your UGC (such as posts or comments you make) may not be completely removed and copies of your UGC may continue to exist on the Services, including as granted to our sublicensees. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your UGC.
5.4 Disclosure/and or Removal of UGC. Smartcare has certain rights. We may share the UGC you post with our third-party service providers that help us to administer and provide the Services. Additionally, we have the right (but do not assume the obligation) to:
- Monitor all UGC;
- Require that you avoid certain subjects;
- Remove or block any UGC at any time, without notice, at our sole and absolute discretion;
- Disclose any UGC and the identity of the user who posted it, in response to a subpoena, or whenever we believe that disclosure is appropriate to comply with the law or a court order, to prevent or investigate a possible crime or other violation of law, to protect the rights of Smartcare or others, or to enforce these Terms; and
- Terminate your access to and use of the Services, or to modify, edit or block your transmissions to the Services in our sole discretion.
You agree that our exercise of such discretion shall not render us the owner of any UGC you post, and that you will retain ownership thereof, as described above.
5.5 Restrictions on UGC. It is a condition of these Terms that you do not:
- Upload, post, transmit or otherwise make available:
- Any UGC that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
- Any UGC that constitutes or encourages activity that is illegal under criminal or civil law;
- Any UGC that is false, misleading, or fraudulent;
- Any UGC that you do not have a right to make available under any law, or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Any UGC that violates or infringes upon the rights of others, including any UGC which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
- Any UGC that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least 18 years old and you have first obtained his/her express permission or (ii) that person is under 18 years old, but you are his/her parent or legal guardian, or you have obtained express permission from that person’s parent or legal guardian;
- Any request for, or solicitation of, any personal or private information from any individual;
- Any request for, or solicitation of, money, goods, or services for private gain;
- Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- Any UGC that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;
- Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
- Violate any local, state, national or international law, rule or regulation.
You represent and warrant that (i) you have, and will continue to have, the legal right and authority to access, use and disclose to Smartcare the UGC you post; and (ii) Smartcare’s use of the UGC in accordance with these Terms will not violate any applicable laws or regulations, or cause a breach of any agreement or obligation between you and any third party.
6.1 Generally. You acknowledge that in connection with our provision of the Services, we will collect and process on your behalf personal data about (a) your Center’s Authorized Users (“Center Data”); (b) the Parents using the Services on the basis of their children’s attendance at the Center, including the Parents’ names, email, phone numbers and any other information that Parents disclose to you or us via the Services relating to the day care or child care services you provide (“Parent Data”), and (c) the children of Parents you choose to include in your use of the Services, including their names, birthdates and other biometric information (“Child Data”). Together, the Center Data, Parent Data and Child Data are referred to as “Data.” With respect to such collection and processing of Data, you are, and will be deemed to be, responsible for that collection and processing and Smartcare is, and will be deemed to be, a subcontracting party, acting on your behalf at all times as a technology services provider. You are solely responsible for (i) obtaining the requisite consent from your Authorized Employees and Parents; (ii) responding to Parents’ requests for access to their Data; and (iii) the Center’s modification or updates to the Data.
6.2 You Must Download Your Data. You may access and download your UGC and certain Data (excluding credit card and bank account information) via the Services. It is your sole responsibility to perform regular downloads of your UGC and Data. We will take reasonable precautions to protect the security of your UGC and Data; however, because no method of transmitting information over the Internet or storing information is completely secure, we cannot guarantee the security of any information. Smartcare will not be responsible for any loss, destruction or corruption of your UGC or Data. To backup your Data, we recommend downloading the following reports through the Services, at a minimum: Account Information Sheet, AR Aging Grouped by 30 Days, Balance Summary, Employee Information Sheet, Emergency Contacts, Authorized Pickup Person and Leads Custom Fields Report. The recommended frequency of downloading these reports is, at a minimum, every thirty (30) days, but more frequent downloads are strongly encouraged.
6.3 Analytics Data. You acknowledge and agree that Smartcare may collect anonymous data with respect to the use and performance of the Services, and also analyze your UGC and Data to create aggregate data that does not identify you or any individual; and that Smartcare will be the owner of such usage data and aggregate data.
- REFERRALS TO THIRD PARTY SERVICES.Smartcare is integrated with, but not affiliated with, other service providers that provide solutions complementary to our own. We may, at our discretion, send basic information about you (name of Center, Center’s main contact and contact information, Center’s website) to our integrated service providers to see if there is an opportunity for integration of our respective services for you.
- FEES; PAYMENT; TAXES
8.1 Technology Fees. As part of the Services Smartcare provides to you, Smartcare may transmit your invoices for child care tuition (“Tuition”) and any other fees the Center charges to Parents on your behalf. In consideration for the Services, we charge you a technology fee (“Technology Fee”). The Technology Fee is payable monthly in advance, and per your instructions, it can be assessed on either a “per child” basis (an amount multiplied by the number of children a Parent has registered with the App) or a “flat fee” basis. You also have the option to have your Technology Fee (i) identified separately on each Parent invoice, or (ii) incorporated into your Tuition. Under either approach, you agree to allow Smartcare to withhold all applicable Technology Fees due from you to Smartcare in accordance with this Section 8. In the event there are insufficient funds for payment of the Technology Fees, you will be invoiced directly for any remaining Technology Fees due, and failure to pay Technology Fees within fifteen (15) days of being notified that Technology Fees are due will be considered a breach of these Terms.
8.2 Payment Fees. Payments for the Technology Fees, Tuition, and any other fees the Center charges Parents may be made via credit card or automated clearing house (ACH) transactions. We may charge you (i) a credit card processing fee as specified in your pricing proposal on American Express, Discover, Visa, and Mastercard accounts, or (ii) a fee per ACH transaction as specified in your pricing proposal. In addition, for any failed ACH payments attempted, we may charge you a $30.00 processing fee within approximately five (5) business days after any failed ACH payment (“Payment Fee”). We will make no more than three (3) failed attempts on a bank account before requiring a different method of payment from you. In addition, for any failed ACH payments from a Parent for Tuition, the Technology Fee, and/or any other fees you charge to the Parent, we will attempt to charge $30.00 to the applicable Parent within approximately five (5) business days after the ACH payment had failed. We will make no more than three (3) failed attempts on a bank account before requiring a different method of payment from the Parent.
8.3 Changes to Technology and Payment Fees. We reserve the right to modify the Technology Fee or Payment Fee at our discretion by providing at least thirty (30) days prior notice to you. Any changes to the Technology Fee or Payment Fee will not apply to your Initial Subscription Term (as defined below) but will take effect upon renewal or at the start of the calendar month for which the change is effective after your Initial Subscription Term. It is your responsibility to notify the Parents of any change to the Technology Fee or Payment Fee if such notification is required under applicable law.
8.4 Taxes. If Smartcare has the legal obligation to pay or collect taxes on any Tuition, Technology Fee, or any other fee that the Center charges Parents for which you are responsible, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Smartcare understands it is solely responsible for all taxes based solely on Smartcare’s income.
8.5 Additional Devices. If, at your request or at our sole discretion, we provide you with additional Service Devices, you will be required to pay to us a one-time fee and/or agree to an incremental early termination fee. We will provide pricing to you at the time the request is made.
- TERM & TERMINATION
9.1 Initial Subscription Term for Center Management Services. Subject to Section 9.4, the initial subscription term for Services defined in Sections 4.1 and 4.2 will commence on the date of initial payment received by Smartcare and will continue for one (1) year (or such other period as may be agreed in writing between Smartcare and you).
9.2 Additional Services Term. If you elect to add Services defined in Section 4.3 and/or 4.4, the Additional Services Term will commence upon signing an order form for the additional Services and will renew on the same day of the month for every calendar month thereafter.
9.3 Renewal. After the Initial Subscription Term, these Terms will automatically renew for successive additional one (1) year Subscription Terms, unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the end of the then-current Subscription Term or notice of termination is provided as outlined in Section 9.4.
9.4 Termination. You may – subject to your payment of all Technology Fees in accordance with Section 8, return of, or reimbursement to Smartcare for, all Service Devices in accordance with Section 9.4, and, if during the Initial Subscription Term, payment of early termination fees of $299 – terminate these Terms at any time by giving us thirty (30) days prior notice. Additionally, either party may terminate these Terms with written notice in accordance with Section 16.4 if the other party breaches these Terms and fails to correct the breach within thirty (30) days following written notice specifying the breach. Without limiting other available remedies, Smartcare reserves the right to terminate, suspend or disable your access to the Services if we determine, in our discretion, your or any Authorized User’s use of the Services or any Service Device does or may disrupt, harm, or pose a security risk to Smartcare, the Services, our systems or any third party.
9.5 Effect of Termination. Upon any expiration or termination of these Terms (the “Termination Date”), your right to access and use the Services will automatically terminate, and you may not continue to access or use the Services; except that for a period of ninety (90) days from the Termination Date, you may access the Services for the sole purpose of downloading, without charge, a copy of your UGC and certain Data (excluding credit card and bank account information), in a file type of Smartcare’s choosing (CSV or similar). Effective on the ninety-first (91st) day after the Termination Date, Smartcare will have no further obligation to maintain or provide your UGC or Data and has the right to delete and/or destroy all copies thereof held by it. Smartcare will have no liability arising out of or related to Smartcare’s exercise of its termination rights under these Terms. Sections 2, 3, 6.3, 9.4, 9.5, 10.3, 10.4, 10.5, and 11 – 16 will survive any expiration or termination of these Terms.
9.6 Hardware Return or Reimbursement. Within thirty (30) days of the Termination Date, you must either return to Smartcare, or reimburse Smartcare of the initial purchase price for, each Service Device provided by us. If any Service Device is at any time lost, or returned damaged or severely worn, in Smartcare’s sole, reasonable discretion you must pay Smartcare as follows: four hundred dollars ($400) for each Apple iPad with a twenty-five percent (25%) reduction for every year of use, three hundred dollars ($300) for each Smartcare sign-in kiosk or iPad Mini with a twenty-five percent (25%) reduction for every year of use, and fifty dollars ($50) for each Amazon Kindle with a twenty-five percent (25%) reduction for every year of use. Service Devices must be shipped (at your expense and with adequate insurance) via FedEx or UPS to: Smartcare Returns, 4175 Cameron Street, Suite A2, Las Vegas, NV 89103. Once all items have been returned and found to be in working order, we will transfer you any remaining amounts remitted by the Parents. If you have lost or damaged one or more Service Devices, please email us at hello@Smartcare.com to request the final hardware amount owed by you (which will be calculated in accordance with this Section and deducted from any payments owing to you from Smartcare or promptly paid by you).
- OWNERSHIP & RIGHTS
10.1 Content License. Subject to your compliance with these Terms, Smartcare grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services (“Content”) solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes. Content includes, without limitation, User Generated Content.
10.2 App License. Subject to your compliance with these Terms, Smartcare grants you a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to download and install a copy of the App on a mobile device or computer that you own or control, and to run such copy of the App solely to provide child care management-related services. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Smartcare reserves all rights in and to the App not expressly granted to you under these Terms.
10.3 Reserved Rights. Smartcare and its licensors own the Services, including all intellectual property rights therein (collectively, the “Smartcare IP”). No other rights are granted in any Smartcare IP or UGC, except as expressly set forth in these Terms. Without limiting the foregoing, the App is licensed and not sold, and no ownership interest in the App is granted under these Terms.
10.4 License to Your Trademarks. You grant Smartcare the right to use the Center’s name, trademark and logo on Smartcare’s website and marketing materials to identify you as a Smartcare center.
10.5 Feedback. By providing any ideas, suggestions, or recommendations regarding the Services (“Feedback”) to Smartcare, you grant Smartcare a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner such Feedback.
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR ITS CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH OUR SITE. THE SERVICES, AND ALL OF ITS CONTENT ARE PROVIDED FOR USE “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SMARTCARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND QUALITY WITH RESPECT TO THE SERVICES, THE CONTENT, ANY SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE, AND ANY WEBSITE WITH WHICH IT IS LINKED.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES, THEIR SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THE SERVICES WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES). WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE INFORMATION ACCESSIBLE VIA THE SERVICES, OR ANY WEBSITE WITH WHICH IT IS LINKED, IS ACCURATE, COMPLETE, OR CURRENT. WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT APPEARING ON THE SERVICES.
WE DO NOT REPRESENT OR WARRANT CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO, OR USE OF THE SERVICES.
SMARTCARE WILL HAVE NO LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, ANY ERRORS OR OMISSIONS IN ANY INFORMATION PROVIDED TO SMARTCARE BY YOU IN CONNECTION WITH THE SERVICES; OR ANY ACTIONS TAKEN BY SMARTCARE AT YOUR DIRECTION; OR YOUR USE OF ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE OR WEBSITES, HOWEVER ACCESSED. NEITHER SMARTCARE, NOR ITS LICENSORS, ARE RESPONSIBLE FOR YOUR CONDUCT. WITHOUT LIMITING THE FOREGOING, SMARTCARE DISCLAIMS ALL LIABILITY FOR ANY CLAIM, PERSONAL INJURY OR PROPERTY DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.
USE OF ANY SERVICE DEVICE MAY BE SUBJECT TO ADDITIONAL LICENSE TERMS. SMARTCARE WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY ERRORS OR OMISSIONS IN ANY INFORMATION PROVIDED TO SMARTCARE BY YOU IN CONNECTION WITH THE SERVICE; OR ANY ACTIONS TAKEN BY SMARTCARE AT YOUR DIRECTION; OR YOUR OR ANY AUTHORIZED USER’S USE OF ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE OR WEBSITES, HOWEVER ACCESSED. NEITHER SMARTCARE NOR ITS LICENSORS ARE RESPONSIBLE FOR YOUR OR YOUR AUTHORIZED USERS’ OR PARENTS’ CONDUCT OR YOUR PROVISION OF DAY CARE OR CHILD CARE SERVICES. WITHOUT LIMITING THE FOREGOING, SMARTCARE DISCLAIMS ALL LIABILITY FOR ANY CLAIM, PERSONAL INJURY OR PROPERTY DAMAGE ARISING IN CONNECTION WITH YOUR PROVISION OF ANY DAY CARE OR CHILD CARE SERVICES.
YOU ACCEPT THAT OUR SHAREHOLDERS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES SHALL HAVE THE BENEFIT OF THIS CLAUSE.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SMARTCARE, ON BEHALF OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING, INCLUDING, WITHOUT LIMITATION, ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA, LOSS OF USE, LOSS CAUSED BY A VIRUS, LOSS OF INCOME OR PROFITS, LOSS OF OR DAMAGE TO PROPERTY, SERVICE INTERRUPTION, CLAIMS OF THIRD PARTIES, OR OTHER LOSSES OF ANY KIND OR CHARACTER, INCLUDING GOODWILL OR OTHER ECONOMIC ADVANTAGE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES OR ANY WEBSITE WITH WHICH THEY ARE LINKED, ANY DEVICE PROVIDED BY SMARTCARE, OR ANY SERVICES IN CONNECTION WITH THE SITE. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF SMARTCARE WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO SMARTCARE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- INDEMNIFICATION. You agree to defend, indemnify, and hold harmless Smartcare and its officers, directors and employees against any claim, legal proceeding or request arising out of or related to: (a) any injury, damage or loss resulting from your or an Authorized User’s use of the Services; (b) use of the Services by you or an Authorized User in a manner that violates these Terms; (c) Smartcare’s use of your UGC and the Data in accordance with these Terms; and/or (d) your or an Authorized User’s failure to pay debts owed resulting in a lien notice being sent to Smartcare (“Claim”). You agree that your indemnification obligations include, without limitation, all damage awards, settlement amounts, attorneys’ fees and costs incurred by Smartcare in connection with any such Claim (“Claim Costs”). Smartcare reserves the right to invoice you directly for any Claim Costs.
- LINKS TO THIRD PARTY SITES. The Services may provide links to websites operated by third parties. We are not responsible for examining or evaluating, and we do not warrant the products or offerings of, any of these businesses or individuals or the accuracy or content of their websites. We do not assume any responsibility or liability for the actions, product, and content of any such sites. Before you use any website, you should review the applicable conditions of use and policies. The inclusion of a link on the Services does not imply our endorsement of the website. If you decide to access linked third-party websites, you do so at your own risk.
- ARBITRATION AGREEMENT WITH CLASS ACTION WAIVER
15.1 Arbitration Governing Law. This Arbitration Agreement is governed by the Federal Arbitration Act and federal arbitration law.
15.2 Agreement to Arbitrate. You and Smartcare agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or the use of, the Services or Content, including the validity and scope of the Terms and this Dispute Resolution provision (collectively, “Disputes”) will be settled by binding individual arbitration, except that both you and Smartcare retain the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of your or Smartcare’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the type of action described in foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in Cook County, Illinois, and you and Smartcare waive any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Smartcare are each waiving the right to a trial by jury and the right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Smartcare otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific Section is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms and/or a determination that one or more other sections of these Terms are unenforceable, pursuant to Section 16.8 below.
15.3 Opt-Out. You may opt out of this Agreement to Arbitrate if you send a signed, written opt-out notice within thirty (30) days of your acceptance of these Terms. You must send the opt-out notice to: Smartcare, Attn: Legal, 4175 Cameron Street, Suite A2, Las Vegas, NV 89103.
15.4 Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the “Commercial Arbitration Rules and Mediation Procedures” (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
15.5 Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Commercial Demand for Arbitration at www.adr.org/Forms.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If you and Smartcare are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
15.6 Arbitration Location and Procedure. Unless you and Smartcare otherwise agree, the arbitration will be conducted in the county where you reside. A party’s right to a hearing is determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties.
15.7 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. To the extent permitted by law, the arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section, above, as to the types and amounts of damages for which a party may be held liable. To the extent permitted by law, the arbitrator may award declaratory or injunctive relief only in favor of a party, and only to the extent necessary to provide relief warranted by the party’s individual claim or defense. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Smartcare will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
15.8 Fees. If you make a claim for damages that does not exceed $75,000, Smartcare will pay all AAA filing, administrative and arbitrator fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you make a claim for damages that exceeds $75,000, your responsibility to pay all such fees will be solely as set forth in the AAA Rules.
15.9 Changes. Notwithstanding the provisions of Section 3 (“Changes to Terms or Services”), if Smartcare changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to hello@Smartcare.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in case of a material change, the date of Smartcare’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Smartcare in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
16.1 Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Smartcare’s prior written consent, and any attempt by you to do so, without such consent, will be void. Smartcare may freely assign these Terms without restriction, and thereafter be relieved of all liability hereunder.
16.2 Force Majeure. Neither party will be responsible for any failure or delay in its performance under these Terms (except for your payment obligations) due to causes beyond its reasonable control, including denial-of-service attacks, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
16.3 Remedies. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
16.4 Notices. Any notices or other communications provided by Smartcare under these Terms, including those regarding modifications to these Terms, will be given: (i) via email to the email address you provide us via the Services, for a material change; or (ii) by posting a bulletin notice through the Services, for a non-material change. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. Notwithstanding the foregoing, in the event of Smartcare’s termination for a Center’s breach of these Terms, Smartcare will send written notice to the Center at the address it has on file for such Center. Notice to Smartcare should be sent to Smartcare, Attn: Legal, 4175 Cameron Street Suite A2, Las Vegas, NV 89103.
16.5 Governing Law; Venue. These Terms are governed by the laws of the State of Delaware, without regard to its conflicts of laws provisions. Any legal suit, action or proceeding arising out of or related to this Agreement that is not subject to the Arbitration Agreement in Section 15 shall be instituted exclusively in the state courts or federal courts of Delaware, in each case located in Wilmington (state) and New Castle County (federal). Each party waives any and all objections to the exercise of jurisdiction over such party by such courts and to venue in such courts.
16.6 No Waiver. The failure by either party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision.
16.7 Independent Contractors. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms.
16.8 Third Party Rights. These Terms are intended for the sole and exclusive benefit of the parties and are not intended to benefit any third party. Only the parties to these Terms may enforce them.
16.9 Severability. If any provision of these Terms is held unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.
16.11 Remedies. Except as expressly set forth in these Terms, the exercise by either you or Smartcare of any remedy under these Terms will be without prejudice to any other remedies under these Terms or otherwise.
16.12 Conflicts. Smartcare rejects and will not be bound by any terms or conditions contained in any purchase order or any purchasing document provided to you by a third party that is inconsistent with these Terms or purports to directly or indirectly, explicitly or implicitly, bind Smartcare.
17. CONTACT. All questions and requests for customer service or technical support should be directed to the Smartcare service team by email at email@example.com or by regular mail to 4175 Cameron Street, Suite A2, Las Vegas, NV 89103 or by calling 1‑844‑SMARTER.