smartcareOS, LLC (“smartcare,” “us” or “we”)
ENTERPRISE TERMS OF SERVICE
FOR DAY CARE AND CHILD CARE CENTERS
Last Updated: August 9, 2017
Please read these Enterprise Terms of Service (these “Terms”) carefully because they govern your use of child care management-related services, including those accessible via our website located at (the “Site”) and our mobile device application (“App”) and any device provided to you by smartcare (“Service Device”). To make these Terms easier to read, such services, the Site, App and Service Devices are collectively called the “Service.”
1. AGREEMENT TO TERMS. By clicking “Sign Up” or by using the Service, you agree to these Terms. If you are accepting these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of these Terms, and, in such event, “you” and “your” will refer to that company or legal entity.
2. CHANGES TO TERMS OR SERVICE. We may modify these Terms at any time. If we do so, we’ll let you know either by posting the modified Terms on the Site, via the App or through other communications. It’s important that you read the Terms whenever we modify them because if you continue to use the Service after we have posted the modified Terms on the Site or via the App, you are indicating 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 Service anymore. Because our Service are evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.
3.2 Use. Subject to these Terms, during the Term (as defined below) you may access and use the Service for your internal business purposes and such access and use is expressly limited to your employees who are authorized by you to use the Service on your behalf (“Authorized Users”). The Service may only be accessed and used by Authorized Users who have agreed to abide by these Terms and who may only access and use the Service for the purposes of performing their job functions for you. You are responsible for the use of the Service 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) with reasonable assistance required to implement the Service for you and to provide training.
3.3 Obligations. You agree not to: (1) resell, sublicense, or (except for Parents using a sign-in kiosk for the Service and Authorized Users) otherwise make the Service available to any third party; (2) deactivate, impair, or circumvent any security or authentication measures of the Service; or (3) modify, alter, decompile or reverse engineer the App. You will comply with all laws and regulations applicable to your business and your use of the Service, including any of the foregoing relating to child care and third party proprietary and privacy rights.
4. YOUR CONTENT.
4.1 Your Content. You and Authorized Users may upload data, information, images and other materials to use with the Service (“Your Content”). smartcare assumes no responsibility for your content, or third party content, carried on your systems or on any system provided by us. smartcare may access and use Your Content during the Term as necessary to provide the Service to you and to identify or resolve technical problems with the Service. We may share Your Content with our third party service providers that help us to administer and provide the Service or as directed by you. You represent and warrant that (1) you have, and will continue to have, during the Term, the legal right and authority to access, use and disclose to smartcare Your Content; and (2) smartcare’s use of Your Content 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.
4.2 Parent Data. You acknowledge that in connection with provision of the Service, we will collect and process on your behalf personal data about your day care or child care customers (“Parents”), including names, email, phone numbers and any other information relating to their acquisition of day care or child care services from you that Parents disclose to you or us via the Service (“Parent Data”). With respect to such collection and processing of Parent Data, you are and will be deemed to be responsible for such 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 responding to Parent’s requests for access to their personal data and modification or updating of such personal data.
4.3 You Must Backup Your Data. You may access and download Your Content and certain Parent Data (excluding credit card and bank account information) via the Service. It is your sole responsibility to perform regular backups of Your Content and Parent Data. We will take reasonable precautions to protect the security of Your Content and Parent 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 Content OR PARENT DATA.
4.4. Analytics Data. You acknowledge and agree that smartcare may collect anonymous data with respect to the use and performance of the Service, and analyze Your Content and Parent 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.
5. REFERRALS TO THIRD PARTY SERVICES. smartcare is integrated with, but not affiliated with, ChildCareCRM, a company that offers marketing tools and services to child care center directors and owners, and Care.com, a company that connects families seeking care with caregivers. We send basic information about your business (name of business, main contact and contact information, website) to each of ChildCareCRM and Care.com to see if there is an opportunity for integration of our respective services for you. If so, ChildCareCRM or Care.com may contact you separately. If, having been contacted by Care.com, you permit Care.com to advertise your day care or child care center with Care.com, you authorize us to provide Care.com with your total enrolled children per room and, on a real-time basis, the total maximum available spaces per room so that Care.com can advertise availability at your day care or child care center. If you wish to opt-out of either or both of these programs at any time, please let us know by contacting your dedicated center service manager. Because smartcare is a separate entity from ChildCareCRM and Care.com, we are not liable for their services. Please refer to their respective Privacy Policies for more information.
6.1 Fees; Payment. As part of the Service, smartcare will remit invoices to Parents on your behalf. The fees for the Service option chosen by you and notified to you prior to your acceptance of these Terms (“Fees”) are charged monthly in advance on a per Child basis or flat fee basis. You authorize smartcare to withhold (1) the applicable per Child Fee multiplied by the number of enrolled Children you have each month or the applicable monthly flat fee, (2) our credit card processing fee of up to 2.85% on American Express, Discover, Visa, and Mastercard accounts, and (3) up to $0.40 per ACH transaction. Such Fees will either be applied to each Parent invoice, or, if you have selected this option, will not be displayed on the Parent invoice but will still be withheld from the transfer made by us to you. In addition, for any failed ACH (automated clearing house) payments attempted at the request of a Parent, we will attempt to charge $30.00 to the applicable Parent approximately five (5) business days after the ACH payment had failed. We will only make three (3) failed attempts on a bank account before requiring a different method of payment from the Parent. We reserve the right to modify the Fees at our discretion by providing at least thirty (30) days prior notice to you. Any changes to the Fees will not apply to your then-current Subscription Term, and will take effect at the beginning of the next Subscription Term. In the event the transfer made by us to you in less than the Fees due to us, you will be invoiced directly for the balance of the remaining fees due. You agree to remit to smartcare all Fees due to us in accordance with the provisions set forth in this section; failure to pay Fees within 15 days of being notified that Fees are due will be considered a breach of this agreement.
6.2 Taxes. If smartcare has the legal obligation to pay or collect taxes 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.
6.3 Additional Devices. If, at your request or our sole discretion to fulfill, we provide you with additional Service Devices, you will pay to us either or both 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.
7. TERM & TERMINATION
7.1 Term. The initial subscription term 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) (the “Initial Subscription Term”). Thereafter, these Terms will automatically renew for successive additional one (1) year renewal 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. In these Terms, the Initial Subscription Term and each renewal term are each individually referred to as a “Subscription Term” and collectively as the “Term.”
7.2 Termination. You may, subject to your payment of all Fees in accordance with Section 7.3, payment of early termination fees of $299, and return of, or reimbursement of smartcare for, all Service Devices in accordance with Section 7.4, terminate these Terms at any time by giving us thirty (30) days prior notice. A party may terminate these Terms with written notice 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 suspend or disable your access to the Service if we determine (in our discretion) your or any Authorized User’s use of the Service or any Service Device does or may disrupt, harm, or pose a security risk to smartcare, the Service, our systems or any third party.
7.3 Effect of Termination. Upon any expiration or termination of these Terms (the “Termination Date”), your right to access and use the Service will automatically terminate, and you may not continue to access or use the Service; except that for a period of ninety (90) days from the Termination Date, you may access the Service for the sole purpose of downloading, without charge, a copy of Your Content and certain Parent 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 Content or Parent 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. Except for termination by you under Section 7.2 for breach by smartcare, you will be responsible for payment to smartcare of any Fees for the remainder of the then-current Subscription Term (such Fees to be calculated based on your then-current number of Parents and deducted from payments owing to you from smartcare or promptly paid by you). Sections 3.2, 4, 5, this Section 7.3, 7.4 and Sections 8 through 12 will survive any expiration or termination of these Terms.
7.4 Hardware Return or Reimbursement. Within thirty (30) days of the Termination Date, you must either return to smartcare, or reimburse smartcare for, each Service Device provided by us. If any Service Device is at any time lost, or returned damaged or severely worn, you must pay smartcare as follows: four hundred dollars ($400) for each 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 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 B, Las Vegas, NV 89103. Once all items have been returned and found to be in working order, we will transfer your last remittance. If you have lost or damaged one or more Service Devices, please email us at email@example.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).
8. OWNERSHIP & RIGHTS. smartcare and its licensors own the Service, including all intellectual property rights therein (collectively, the “smartcare IP”). You own all Your Content. No rights are granted in any smartcare IP or Your Content, 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. You grant smartcare the right to use your name, trademark and logo on smartcare’s website and marketing materials to identify you as a smartcare center. By providing any ideas, suggestions, or recommendations regarding the Service (“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.
THE SERVICE IS PROVIDED ‘AS IS.’ smartcare MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, smartcare DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Service will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
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.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL smartcare OR ITS LICENSORS BE LIABLE FOR ANY incidental, special, exemplary or consequential damages, INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, GOODWILL OR OTHER ECONOMIC ADVANTAGE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, arising ouT of or in connection with thESE TERMS or from the use OF or inability to use THE SERVICE OR ANY DEVICE PROVIDED BY smartcare, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL smartcare’S TOTAL LIABILITY EXCEED THE FEES RECEIVED BY smartcare RELATING TO YOUR USE OF THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
11. INDEMNIFICATION. You will: (i) defend smartcare, its officers, directors and employees against any Claim arising out of or related to (a) any injury, damage or loss resulting from your or an Authorized User’s use of the Service, (ii) use of the Service by you or an Authorized User in a manner that violates these Terms, or (iii) smartcare’s use of Your Content and the Parent Data in accordance with these Terms; and (2) indemnify and hold smartcare harmless from any final award of damages or settlement amount arising in connection with any such Claim.
12. GENERAL. These Terms are governed by the laws of the State of California, without regard to its conflicts of laws provisions. The exclusive jurisdiction and venue of any legal action arising under these Terms will be the state and federal courts located in the Northern District of California and each of the parties waives any objection to jurisdiction and venue in such courts. 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. Neither party will be responsible for any failure or delay in its performance under these Terms (except for the payment of money) 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. 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. All notices required or permitted under these Terms will be in writing and delivered by courier or overnight delivery service, or by certified mail, or by email, and in each instance will be deemed given upon receipt. 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. 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. 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. 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. These Terms are the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and smartcare have executed a separate written agreement. Any terms or conditions contained in your purchase order or other purchasing document that are inconsistent with or in addition to the terms and conditions of these Terms are hereby rejected by smartcare and will be deemed null.
13. CONTACT. All questions and requests for customer service or technical support should be directed to the smartcare Service Team at 4175 Cameron Street, Suite B, Las Vegas, NV 89103 or by calling 1-844-SMARTER.