Acceptance of Deliverables : ChildCare Smiles ("The Company") will notify you upon completion of deliverables, or portions thereof. Unless informed in writing by you within seven (7) days of such notice that the deliverables or services are unacceptable, they shall be deemed accepted as completed work. Approvals : This Agreement may require us to secure approval from each other for various activities, which we agree may take place via email, extranet, or in such other mutually agreed-upon manner. All responses to requests for approval shall be made within seven (7) days of receipt by the party with the approval right and approvals shall not be unreasonably withheld. Each party shall be entitled to learn the reason for a refusal to approve, shall help suggest a solution, and will have a reasonable period to meet the objection. When a deliverable is submitted for approval and no approval or rejection is received within seven (7) days, the item shall be deemed approved. Our integration of all reasonable changes suggested by you on any deliverable shall be considered acceptance of the deliverable by you without further submission. If all proposed changes are not acceptable or will delay further deliverables, individual deliverable items may be signed off on, on a case-by-case basis. Confidentiality and Security: Each party agrees to maintain the confidentiality of any information provided by the other party that a reasonably prudent person would understand to be revealed under a duty of confidentiality ("Proprietary Information"), and to only use it in carrying out its rights and obligations under this Agreement. For avoidance of doubt, the services furnished by us and our processes and questions, materials, and the terms of and pricing under this Agreement are our Proprietary Information. The confidentiality obligations shall not apply to any material or information that the receiving party can document (i) is or becomes generally available to the public without the other party's breach of this section; (ii) was in its possession or known by it prior to receipt from the other party; (iii) was rightfully disclosed to it by a third party; (iv) was independently developed without use of the other party's Proprietary Information; or (v) is required to be disclosed by law. Intellectual Property. As part of the Membership in, each Member shall be allowed to utilize The Company name and logo on their logo and advertising materials (which shall be subject to ChildCare Smiles' reasonable approval), for so long as the Member is in compliance with the terms of this Agreement. The Member understands and agrees that the logo and the trademark "ChildCare Smiles" are the property of The Company, and as such, any unauthorized use is an infringement of The Company intellectual property rights. Member understands that ChildCare Smiles has implemented physical, electronic and managerial procedures to safeguard and help prevent unauthorized access, maintain data and image security, and correcly use the information we collect and provide online. Payment : The initial term of the Agreement is twelve months; any monthly payments indicated in the New Membership Account Contract are for ease of payment only. Should Member desire to terminate this Agreement, the remaining amount for the twelve month period is immediately due and payable. This contract shall renew for additional twelve month periods upon the anniversary date thereof, unless either party gives notice thirty (30) days before the date of such renewal that the contract will be terminated; the payment amount and terms for any renewal period will be at the then-current rates. Materials Provided by Member : All information and materials you provide us and/or post on your portion of our website shall be accurate and complete and you shall be fully responsible for their accuracy and completeness. You guarantee that you own all such materials or that you have all necessary rights in such materials and if it found that you do not, that you will indemnify us for any claims brought against us with respect to your information and materials. Where you provide photographs, illustrations, or other visual materials, they shall be in a form suitable for posting on the website. Upon request, we shall return all materials provided by you within 30 days after completion of the project and payment of amounts due. Proofreading: Final proofreading is your responsibility. As part of the final approval process, you should proofread everything, including copy that was supplied by you for the project. Reliance: We may rely on all decisions and approvals oral or written (including extranet or email) made by your employees and agents. Requests for any changes or additions to the profile must be in writing. Payments: If you are not paying via a credit card, all invoices are net 15 days. Accounts not timely paid are subject to a 1.5% monthly finance charge. If your account is not kept current, your portion of our website may be withdrawn from public view, and all work on this or any other project may cease until your payments are made current; you agree that we shall not be responsible for any such actions. You agree to notify us within ten (10) days of the date on the invoice of any disputes that you may have with a particular invoice, after which period such disputes shall be deemed waived. You agree to pay any items on an invoice containing disputed items that are not the subject of the dispute. You agree to be responsible for charges related to collections, if any. Cancellation: Each party may terminate this Agreement upon thirty (30) days' written notice for any reason or no reason; provided, however, that we may terminate this Agreement immediately upon non-payment after giving you ten (10) days to cure. In the event you halt work or wish to cancel or terminate the profile after it has been initiated, you agree to pay as indicated under the Payment section.
Ownership of Work: Any templates, code, scripts or forms utilized by us in accomplishing tasks under this Agreement, and your portion of our website describing your services ("Background Technology") are licensed by us to you on a non-exclusive basis, for your use only as part of the deliverables for so long as your account with us is current. If we work on materials, files, or documents provided by you, these materials shall continue to belong to you. Upon payment in full for all services and expenses, you are granted a worldwide, non-exclusive license to use the deliverables and/or services for so long as you continue to pay for them, and only in a manner such that they are accessible through ChildCareSmiles.com, not in a manner whereby your page can be accessed without going through the The Company website. Your portion of the The Company website is not to be used for any other purposes, which shall be deemed an unauthorized use under intellectual property law. Warranties : The work we produce is created specifically for you (with the exception of any items such as the Background Technology, clipart, artwork and photography, which are licensed and re-used on a non-exclusive basis). The possibility exists that our work may bear unintentional similarities to existing copyrighted, trademarked or patented intellectual property or trade dress, so our creative products, advice, and deliverables and services are provided "AS IS," without any warranties, express or implied. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT), WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, HOWEVER CAUSED; WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. Notwithstanding the foregoing, our liability shall in all events be limited to willful misconduct or gross negligence on our part, and we shall in no event be liable under any theory for more than the amount we have been compensated for, directly tied to the problem at issue. Publicity of Completed Works: You assign us the right to publicize completed work, provided that such publicity does not violate any confidentially agreement with you. We also reserve the right to include a credit line on your portion of our website, and this same credit shall be included in any publication or public display of the work by you. Arbitration: Any controversies between us shall be discussed between us with the aim of resolving such controversies, each using reasonable judgment. If we cannot resolve the conflict after such discussion, except for non-payment or late payment, which may be submitted to a court in San Francisco, California, we both agree to submit the controversy to arbitration, and the decision of the arbitrator shall be final and binding, and the arbitrator's order may be entered in any court of competent jurisdiction and enforceable thereby. The prevailing party shall have all fees and costs paid for by the other party, in addition to any other relief it may be awarded. We each expressly agree to the application of California law, without regard to its conflict of laws rules, and exclusive venue and jurisdiction in San Francisco, California. Service may be made by commercial courier with tracking capabilities (e.g., UPS). All disputes on any issues, whether known or unknown, must be brought within one (1) year of the delivery date of the final deliverable, or they shall be deemed waived; the parties expressly agree to a one-year statute of limitations period. Assignment: This Agreement is not assignable or transferable by you, and any attempted assignment shall be void and without effect, unless it is agreed to in writing by us. Severability; Waiver: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue without being impaired or invalidated in any way. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of other or subsequent breaches. Survival: All Sections of this Agreement that by their nature should survive termination or expiration will survive, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. Force Majeure: Except for payment obligations, neither party shall be responsible for any failure or delay in its performance due to circumstances beyond its reasonable control, including but not limited to acts of God, war, terrorist attacks, sickness, computer viruses, equipment failure, etc. No Agency: No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority to bind us in any respect. We shall have the right to use third parties in performance of our services and, for purposes of this Agreement, all references to us shall be deemed to include such third parties/subcontractors. Miscellaneous: Both parties have read this Agreement, and had the opportunity to consult with their legal advisors. It will be fairly interpreted according to its terms, without strict construction against either party. All portions of this Agreement that by their nature should survive its termination or expiration shall survive, such as payment obligations, warranty disclaimers, limitations of liability, statutes of limitation, venue and jurisdiction, and the like. |