Agreement to Terms
By using our Services, you agree to be bound by these Terms, including the Agreement to Arbitrate set forth in Section 17, unless we have entered into a separate written agreement. If you don’t agree to these Terms, do not use the Services.
Changes to Terms or Services
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 via the Site or the App, 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 no longer use the Services. 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.
You may use the Services only if you are 18 years or older, capable of forming a binding contract with Smartcare, and not barred from using the Services under applicable law. In addition, if you enter any information through the Services, you represent and warrant that you are the parent or legal guardian of the individual subject of the information, or that you are otherwise authorized by the parent or legal guardian to enter such information.
Registration and Your Information
If you want to use certain features of the Services, you’ll have to create an account (“Account”). You can do this via the Site or App. It is important that you provide us with accurate, complete and up-to-date information for your Account, and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you will not disclose your Account password to anyone, and you will notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
You agree not to: (i) resell, sublicense, 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 use of the Services, including laws and regulations relating to privacy and third party proprietary rights.
User Generated Content
7.1 Your Responsibility. You 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.
7.3 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.
7.4 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, or as directed by you. 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.
7.5 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.
7.6 Additional Representations and Warranties. 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.
7.7 Intellectual Property Limitation of Liability. Smartcare respects the intellectual property of others, and we ask visitors to the Site to do the same. If you believe that your work has been used in a way that constitutes copyright infringement, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to Smartcare’s designated Copyright Agent:
- Identification of the copyrighted work(s) that you claim has been infringed;
- Identification of where the material that you claim to be infringing is located on the Site and/or the App;
- A statement that you have a good faith belief that use of the disputed material is not authorized by the copyright owner, its agent, or the law, including the law of copyright fair use;
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner of an exclusive copyright that is allegedly infringed or are authorized to act on the copyright owner’s behalf;
- Your address, telephone number, and e-mail address; and
- Your physical or electronic signature.
Smartcare’s designated agent for notification of claims of copyright infringement on this Site and/or the App can be reached as follows:
Address: Designated Agent for Intellectual Property
4175 Cameron Street, Suite A2
Las Vegas, NV 89103
Similarly, if you believe that any of your trademarks or service marks have been infringed, or if you believe that your image has been used without your consent, please notify Smartcare’s designated agent.
- Data Collected. You acknowledge that in connection with our provision of the Services, we will collect and process on your behalf personal data about (a) you, including names, email, phone numbers and any other information relating to your registration or use of the Services (“Parent Data”), and (b) the children you choose to include in your use of the Services, including their name(s), birthdate(s) and other biometric information (“Child Data”). Together, the 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 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 obtaining the requisite consent from the child’s parent or guardian to provide the Child Data.
- You Must Backup Your Data. You may access and download your UGC and certain Data (excluding credit card and bank account information) via the Services. Backups are performed by your child care center (“Center”) and not Smartcare. 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.
- Analytics Data. You acknowledge and agree that Smartcare may collect anonymous data with respect to the use and performance of the Services, and 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.
- Fees; Payment. As part of Smartcare’s services to the Center, the Center may use Smartcare’s Services to invoice and collect your child care tuition (“Tuition”) and other related fees owed to your Center. You may pay via credit card or automated clearing house (ACH) transaction. Together, your Tuition and any other fees you are charged by the Center are referred to as “Fees.” Some Fees charged to you by the Center are payable monthly in advance. Fees may be assessed on a “per child” basis (an amount multiplied by the number of children you have registered with the App) and will be charged for as long as you remain with the Center and/or your Center chooses to charge you the Fees. For all payments of Fees made through the invoicing and payment system, we may charge you a credit card processing fee which will be disclosed to you at the time of payment on American Express, Discover, Visa, and Mastercard accounts. 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. We will make no more than three (3) failed attempts on a bank account before requiring a different method of payment from you. (These terms for credit card processing fees and attempts may be superseded by the terms of any third party that processes payments on behalf of Smartcare.)
- Taxes. If Smartcare has the legal obligation to pay or collect taxes on the Fees for which you are responsible to pay to the Center, those amounts will be added to your monthly invoice from the Center, and you are responsible for paying them, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
Ownership and Rights
11.1 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.
11.2 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 for your own personal non-commercial purposes. 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.
11.3 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.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback at any time, including, by emailing us at hello@Smartcare.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
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 THE SITE, AND ANY WEBSITE WITH WHICH IT IS LINKED.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SITE, ITS SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THE SITE 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 THEY ARE LINKED, ARE 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.
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, EXCLUDES AND DISCLAIMS 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, 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, 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 FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED TEN DOLLARS ($10.00).
You agree to indemnify and hold Smartcare, our subsidiaries and affiliates, and our and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of: (a) your use of the Services in violation of these Terms; (b) your breach of these Terms; and/or (c) our liability relating to your UGC. We reserve the right to defend any such claim, and you agree to provide us with such reasonable cooperation and information as we may request.
Links to Third Party Websites
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 in 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
17.1 Arbitration Governing Law. This Arbitration Agreement is governed by the Federal Arbitration Act and federal arbitration law.
17.2 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 Smartcareare 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 paragraph 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 18.3 below.
17.3 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.
17.4 Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (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.
17.5 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 Consumer Demand for Arbitration Form at https://www.adr.org/Forms.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by you and Smartcare 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.
17.6 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.
17.7 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 and the AAA Rules. Smartcare will not seek, and hereby waives all rights it may have under applicable law and the AAA Rules to recover, attorneys’ fees and expenses if it prevails in arbitration.
17.8 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.
17.9 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).
18.1 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.
18.2 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.
18.4 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.
18.6 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 are not subject to the Arbitration Agreement in Section 17 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.
18.7 No Waiver. Smartcare’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Smartcare.
18.8 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.
All questions and requests for customer service or technical support should be directed to the Smartcare service team by email at hello@Smartcare.com or by regular mail at 4175 Cameron Street, Suite A2, Las Vegas, NV 89103 or by calling 1-844-SMARTER.
Reach out to one of our child care management professionals, or find us on social media.