Terms of Service
1. SERVICES: Company offers online access to various directories of school break care providers (“Providers”) through its proprietary websites and related databases and services ancillary thereto (collectively, the “Services”). Schedule A describes the Services Company will be providing to Customer, the price Customer will pay for the Services, when the Services will be provided and any special terms and conditions. Customer shall not, without the prior written consent of Company (which may be withheld in its sole discretion), resell the Services to any third parties. Customer will provide all assistance reasonably required by Company to perform the Services. Customer licenses Company to use any materials provided by Customer hereunder for the purpose of providing the Services. During the term of this Agreement, Customer agrees not to solicit, engage or enter into any contract with any Provider for any services that are similar to the Services or for the purpose of making school break care available to Customer’s employees, contractors and affiliates.
2. PAYMENT TERMS: Customer will pay all fees due according to the prices and terms listed on Schedule A. Unless otherwise provided on Schedule A, Customer will be billed annually and payment is due upon receipt of each Company invoice. All payments will be made in the United States in U.S. dollars. Any payment not received within thirty (30) days of the invoice date will accrue interest at a rate of one and one half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is delinquent in its payments, Company may, upon written notice to Customer, modify the payment terms or require other assurances to secure Customer’s payment obligations hereunder. All fees charged by Company for Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Company’s net income.
3. SUPPORT: Company shall provide the support services set forth in Schedule A during normal business hours to assist Customer in the use of the Services and to attempt to correct errors in the Services. Company shall make a reasonable effort to resolve all errors in a timely fashion in accordance with Schedule A; provided, that Company shall be under no obligation to provide technical support for any service not specifically provided by Company or errors not attributable to Company.
4. OWNERSHIP: Company or its licensors will retain ownership of all technology and computer software used by Company to perform the Services or provided to Customer for Customer’s use. If the Services include use by Customer of Company or third party computer software, Customer’s rights and obligations with respect to such software will be governed by the applicable software license agreement. Company will retain ownership of all content on its website, including graphics and text, that it creates or obtains from Customer or third parties.
5. WARRANTY, DISCLAIMER OF WARRANTIES: The Services will be performed in a workmanlike manner. Customer’s sole remedy for breach of this warranty shall be reperformance of the Services by Company at no charge to Customer or, at Company’s option, refund of the monies paid by Customer for the Services that do not comply with the warranty. Except as stated in the immediately preceding sentence, there are no warranties, expressed or implied, for any Services or products furnished under this Agreement. COMPANY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, Customer understands and agrees that Company does not employ, recommend or endorse any Provider nor is it responsible for the conduct of any Provider introduced by Company or included in Company’s directories.
6. LIMITATION OF LIABILITY: To the fullest extent permitted by applicable law, the total aggregate liability to Customer of Company, regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, under this Agreement shall be limited to the fees paid by Customer to Company pursuant to this Agreement during the preceding twelve month period prior to the date of the event upon which such liability is based. IN NO EVENT WILL COMPANY BE LIABLE OR RESPONSIBLE TO CUSTOMER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
7. CONFIDENTIAL INFORMATION: Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
8. COMPIANCE WITH LAWS; WEBSITE: Customer agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Customer will comply at all times with all applicable laws and regulations. If Customer has webpage(s) or a website hosted by Company within a site controlled by Company, Customer shall comply with all of Company’s applicable privacy policies, end user agreements, or other terms and conditions of use in effect from time to time. This includes, but is not limited to, Customer’s use of data provided by Company.
9. TERMINATION: The term of this Agreement shall be as set forth on Schedule A. Customer shall have the right to terminate this Agreement with sixty (60) days prior written notice if Customer in its sole discretion is dissatisfied with the performance of Services. This shall be the sole recourse to Customer. Company shall have the right to terminate this Agreement upon failure of Customer to pay for Services or to maintain any required license or if Customer breaches this Agreement or any license. In addition to any other remedies available at law or in equity, Company will have the right, in its sole reasonable discretion, to suspend immediately any Services if reasonably deemed necessary by Company to prevent any harm to Company and its business. Company will provide notice and opportunity to cure if practicable depending on the nature of the breach. Company shall have the right to otherwise terminate this Agreement with ninety (90) days prior written notice to Customer. Termination of this Agreement shall not relieve Customer of the obligation to pay for Services performed by Company prior to the effective date of the termination.
10. MISCELLANEOUS: Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, by way of example, failures of third party telecommunications links. Customer will not export, re export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all applicable export control laws and regulations. This Agreement is made under and will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without applying its conflicts of law provisions. Any controversy or claim arising out of or relating to this Agreement or the Services shall be submitted to binding arbitration in Boston, Massachusetts, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator may not award any damages excluded by this Agreement. Judgment on any arbitration award may be entered in any court having proper jurisdiction. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party; provided that Company may assign this Agreement in the context of its merger, sale of stock or the acquisition of all or substantially all of its assets relating to the subject matter of this Agreement. However, Company may delegate the performance of Services to third parties, provided Company controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on Schedule A or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier. Company and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Company and Customer. Neither Company nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. This Agreement, including the schedules and any other documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by Company without need of further notice of objection, and shall be of no effect or in any way binding upon Company. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. This Agreement may be changed or amended only by a written document signed by authorized representatives of Company and Customer. For purposes of this Agreement, the term “written” means anything reduced to a tangible form by a party, including a printed or hand written document, e mail or other electronic format. No action, regardless of form, arising out of or in connection with this Agreement may be brought by either party more than one year after the cause of action accrued, provided that this Section shall not serve to limit any claim that Company may have for payment by Customer for Services performed hereunder. Customer agrees that Company may identify and reference Customer as a client of Company in its marketing materials such as promotional brochures, web sites and proposals to prospective clients.