Last updated 2019.03.28
Company and User may be referred throughout the Agreement individually as “Party” or together as “Parties”.
In consideration of the promises and mutual covenants herein, the Parties agree as follows:
Capitalized terms within this Agreement shall have the meanings set forth below.
1.1 “User Data” means data furnished by User, whether created in-house or sourced from one or more third-parties, to be used in conjunction with or collected by the Services. User Data may include text, images, photos, audio, video, and data in any other form.
1.2 “Provider” means the childcare providers or providers of other activities and/or classes for children who have made their business information available to Users via the Services. Providers are subject to additional terms as outlined in the Provider Terms and Conditions.
1.3 “Application” means Company’s mobile application, via which you may access the Services.
1.4 “Services” means the Company’s Provider directory services provided via the Website and/or Application. The Services are a means for Users to find, research, review, and contact Providers.
1.5 “Website” means Company’s public websites, including without limitation those found at the following URLs: letskamp.com. The term “Website” does not include the Company’s Services (as defined above) regardless of the domain name used to access such Services.
2. THE SERVICES.
2.1 Use of the Services. During the Term, User may access and use the Services, solely in accordance with this Agreement, and in no instance in any manner not originally contemplated by this Agreement. User shall at all times adhere to any acceptable use policies published and/or modified by Company from time to time. Failure to adhere to such policies by User shall be considered a breach of this Agreement.
2.2 Services Revisions. Company may revise Services features and functions at any time, including without limitation by removing such features and functions, or removing one or more Services altogether. In no case shall Company be liable to User for making such changes.
2.3 User Data. User warrants that it possesses all ownership rights and/or license grants necessary to make use of the User Data as contemplated by this Agreement. User shall indemnify Company and its Affiliates against any action or claim that User’s use of the User Data infringes the intellectual property rights of any third-party.
2.5 You, as an Individual. All Users, including you, as an individual, must be 18 years or older to access or use the Websites and the Service. If you are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to Company that you have the authority to bind such Entity and its Affiliates to this Agreement. If you do not have such authority, you must not accept this Agreement and may not access or use the Service or Website.
3.1 Ownership. Company owns all worldwide right, title and interest in and to the Website and Services including without limitation all software used to provide the Services, and all the graphics, user interfaces, logos, and trademarks reproduced through the Services, all derivatives thereof, and all worldwide intellectual property rights therein. This Agreement does not grant User any intellectual property license or rights in or to the Website, the Services, or any of their components. User recognizes that the Services and their components are protected by copyright and other laws.
4. USER DATA AND PRIVACY
4.2 Risk of Exposure. User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, User assumes such risks. Company offers no representation, warranty, or guarantee that User Data will not be exposed or disclosed through errors or the actions of third parties.
4.3 Data Accuracy. Company will have no responsibility or liability for the accuracy of data uploaded to the Service by User, any Provider, or any third-party, including without limitation User Data. All such information is provided to User “as-is” without warranty of any kind.
4.4 Data Deletion. Company may permanently erase User Data if User’s account is delinquent, suspended, or terminated for 30 days or more.
4.5 Excluded Data. User represents and warrants that User Data does not and will not include, and User has not and will not upload or transmit to Company’s computers or other media, any data (“Excluded Data”) in violation of any applicable laws or regulations (the “Excluded Data Laws”). USER RECOGNIZES AND AGREES THAT: A.) COMPANY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND B.) COMPANY’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.6 Aggregate & Anonymized Data. Notwithstanding the provisions above, Company may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to User Data with the following removed: personally identifiable information and the names and addresses of User and any of its Users or Users.)
4.7 Company’s Role and Third Party Content. You understand that Website and Services acts only as a marketing platform and technical interface between Users and Providers, and that Company does not itself verify the qualifications of Providers. Any opinions or statements expressed by a User are of those of the User alone, and are not to be attributed to Company. Company cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of anything said, written, posted, displayed or otherwise made available by any User or Provider.
You understand that you may be exposed to content that you find offensive to you, and that you use the Website at your own risk. Please use caution, common sense, and practice safe trading when using the Website.
5. USER’S RESPONSIBILITIES & RESTRICTIONS
5.1 Acceptable Use. User will comply with this Agreement and any acceptable use policies published or otherwise made available by Company. User will not: a.) use the Service for service bureau or time-sharing purposes or in any other way allow third-parties to exploit the Service; b.) provide Service passwords or other login information to any third-party; c.) share non-public Service features or content with any third-party; or d.) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service.
In the event that it suspects any breach of the requirements of this Section 5, Company may suspend User’s access to the Service without advanced notice, in addition to such other remedies as Company may have. Neither this Agreement nor any acceptable use policies requires that Company take any action against User or any other third-party for a violation thereof, but Company is free to take any such action it sees fit. If User is an individual, User’s use of the Services shall be solely for User’s personal, internal purposes.
5.3 Access and Interference. You agree that you will not use any robot, spider, scraper or other automated means to access the Services for any purpose without our prior express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content from the Website or Services without the prior expressed written permission of Company and the appropriate third parties, as applicable; or (iii) interfere or attempt to interfere with the proper working of the Website or any activities conducted on the Website.
5.4 Feedback Integrity; Feedback Export. You may not take any actions that may undermine the integrity of the feedback system.
5.5 Unauthorized Access. User will take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other login information. User will notify Company immediately of any known or suspected unauthorized use of the Service or breach of its security and will use best efforts to stop said breach.
5.6 Users & Service Access. User is responsible and liable for: a.) Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate any acceptable use policies or the requirements of this Agreement applicable to User; and b.) any use of the Service through User’s account, whether authorized or unauthorized.
5.7 Malware and Spam. User will not publish or link to malicious content or code intended to damage, disrupt, compromise, or exploit a User’s or Provider’s browser, device, account, or API key or to compromise an individual’s privacy in any manner. User will not use the Services or any APIs to send spam or otherwise distribute unwanted content and code. Company reserves the right, in its sole discretion, to determine what constitutes spam and/or malware.
6. WARRANTIES AND DISCLAIMERS
6.1 Right to Do Business. User warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
6.2 Disclaimer. User assumes sole responsibility and liability arising from the use of the Service and for conclusions drawn therefrom. Company shall have no liability to User for any claims, losses, or damage that would not have occurred but for the actions or omissions of any other User or Provider.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
7. LIMITATION OF LIABILITY
7.1 Liability Limits. IN NO EVENT SHALL COMPANY BE LIABLE TO USER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO USER IN CONNECTION WITH THIS AGREEMENT, OR USER’S ACCESS TO AND USE OF THE SERVICE, EXCEED FIFTY U.S. DOLLARS ($50 USD), REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
7.2 Acknowledgment. The Parties acknowledge that the limitations and exclusions contained in this Section 7 and elsewhere in this Agreement have been the subject of negotiation between the Parties and represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that a.) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and b.) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement (the “Term”) will commence on the date User first accesses the Website or Services (whichever is first) and continue until User ceases its use of the Service or the Agreement is terminated earlier per the terms below.
8.2 Termination for Breach. Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof.
8.3 Effect of Termination. Upon termination of this Agreement, User will cease all use of the Service.
8.4 Survival. The following sections shall survive the termination of this Agreement for any reason: 2.3, 2.4, 2.5, 3, 4, 5, 6, 7, 8.3, 8.4, 9, 10. Further any provisions that must survive to fulfill their essential purpose shall do so. For the avoidance of doubt, User’s ability to access the Website and Service shall be terminated in conjunction with the termination of this Agreement.
9.1 Indemnity. User will defend, indemnify, and hold harmless Company and the Company Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to User’s alleged or actual use of, misuse of, or failure to use the Service, including without limitation: a.) claims by Users or by User’s employees; b.) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including User Data; and c.) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through User’s account, including without limitation by User Data. Indemnified Claims include, without limitation, claims arising out of or related to Company’s negligence. User’s obligations set forth in this Section 9.1 include retention and payment of attorneys and payment of court costs, as well as settlement at User’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Company Associates” are Company’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
9.2 Exclusions. Neither Party will have any indemnification obligations under this Agreement as to any claim, suit or proceeding unless: a.) the Party to be indemnified promptly notifies the indemnifying Party in writing of such claim, suit or proceeding (except that the indemnified Party’s failure to provide the indemnifying Party with prompt notice of any such claim only shall relieve the indemnifying Party of its indemnification obligations to the extent that its ability to defend the indemnified Party against such claim is materially prejudiced by such failure); b.) the indemnifying Party has sole control of its defense and settlement; and c.) the indemnified Party, upon request of the indemnifying Party, cooperates in all reasonable respects; provided, however, that the indemnified Party may, at its own cost, participate in such claim, suit or proceeding. No settlement of a claim, investigation, suit, or other proceeding that involves a remedy other than the payment of money will be entered into by the indemnifying Party without the consent of the indemnified Party, which consent will not be unreasonably withheld.
10.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Virginia, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the county of Loudoun. Company and User hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
10.2 Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
10.3 Notices. Company may send notices pursuant to this Agreement to User’s email contact points provided by User, and such notices will be deemed received 24 hours after they are sent. User may send notices pursuant to this Agreement to [NOTICE E-MAIL ADDRESS].
10.4 Severability. In the event any provision of this Agreement or its exhibit(s) is held to be invalid or unenforceable, the remaining provisions thereof shall remain in full force and effect.
10.5 Force Majeure. Neither the Parties nor Company’s third-party licensors shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
10.6 Compliance with Laws. Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States. To the extent any such export laws, rules or regulations prohibit Company from complying with any of its obligations hereunder, such failure shall be excused and shall not constitute a breach of this Agreement.
10.7 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
10.8 Assignment/Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Company may assign this Agreement to an Affiliate, to the surviving party in a merger of Company into another entity, or to an acquirer of all or substantially all of that Company’s business assets. This Agreement will be binding upon and inure to the benefit of the respective permitted successors and assigns of the Parties.
10.9 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
10.10 Non-Exclusive Remedies. Unless expressly set forth as an exclusive and/or sole remedy, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
10.11 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
10.12 Third-Party Beneficiaries. This Agreement is intended for the benefit of the signatories and is not intended to benefit any third-party except as expressly stated herein.
10.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
10.14 Amendment. Company may amend this Agreement from time to time by posting an amended version at its Website. Should said amendment materially affect User’s rights, Company shall either send User e-mail notice thereof or post conspicuous notice thereof on the Website, not less than fifteen (15) days prior to the effective date of said amendment. User’s continued use of the Service following the effective date of an amendment will confirm User’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 10.14, Company may revise the privacy and acceptable use policies at any time by posting a new version at the website, and such new version will become effective on the date it is posted.
10.15 Copyright Complaints. Company respects the intellectual property rights of others and shall respond expeditiously to properly reported instances of infringement thereof. User agrees to report instances of alleged copyright infringement in accordance with 17 U.S.C. § 512(c)(3), or per other applicable law. Company reserves the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Company’s designated agent for receipt of notice of alleged copyright infringement on the Services is:
25643 Elk Lick Rd.
Chantilly, VA, 20152
If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Company or the alleged infringer as the result of Company relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Company has the right, but not the obligation, to monitor any materials submitted by you or otherwise made available on the Services, to investigate any reported or apparent violation of this Agreement, and to take any action that Company in its sole discretion deems appropriate, including termination hereunder.