Effective: October 12, 2018
Welcome to Yaycare!
Yaycare Inc. (“Yaycare,” “we,” “us,” “our”) provides its services (described below) to you, or in the case that you represent a company or other entity, that company or other entity (“you,” “your,” “yourself”) through its website located at https://yaycare.app (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). If you are accessing the Site or using the Services on behalf of a company or other entity that you represent, then you agree to bind both yourself as an individual, and your company or other entity, to all of the terms of these Terms of Service. No agency, partnership, joint venture, employment, or franchise relationship is intended or created by these Terms of Service. We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST YAYCARE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Access and Use of the Service
Services Description : The Service is a neutral venue to connect parents and legal guardians of children (collectively, “Parents”) with daycare centers (each, a “Daycare”). Yaycare does not provide child care services. We provide search functionality through the Service to allow Parents to narrow the pool of Daycares they are interested in based on their needs and preferences, and we provide a communications platform that allows Parents and Daycares to communicate with each other. We allow Parents to schedule and book through the Service on-demand with a Daycare child care services at such Daycare’s premises (each such booking, a “Booking”). Parents may, among other things, research Daycares, read and post reviews of individual Daycares, and modify or cancel Bookings. Daycares may, among other things, set child care rates and update scheduling availability for potential Bookings; submit checklists, policies, and other documentation it requires from Parents in connection with Bookings at such Daycare; and view and analyze information related to such Daycare’s past and current Bookings.
Your Registration Obligations: You are required to register with Yaycare in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself, children for which you are seeking child care services, emergency contacts and/or the Daycare you represent (as applicable) as prompted by the Service’s registration form, and represent and warrant that you are authorized to provide such information.
For Daycares: If you registering an account for a Daycare, you represent, warrant and covenant you have the legal right and authority to bind such Daycare to these Terms of Service. You must register the Daycare’s account in the legal name of the Daycare you represent, not your own name. As part of the registration process for Daycares, the information about the Daycare you submit through the Site will be vetted by Yaycare before the registration will be accepted. You agree to provide Yaycare with copies of the documentation requested by Yaycare, which may include without limitation the Daycare’s license, inspection and violation reports, proof of insurance, and a summary of any complaints made against the Daycare. Yaycare reserves the right to reject for any reason a Daycare’s application for registration for the Service.
Additional Requirements for Daycares: If you are using the Service on behalf of a Daycare, you represent at the time of each such use of the Service that such Daycare is fully licensed as required by applicable state laws and regulations; maintains commercially reasonable insurance policies; is, and provides child care services solely through individuals that are, health and safety certified (including CPR and first aid certifications); and has had a clean inspection record for the previous 12 months. You must immediately notify Yaycare and cease using the Service in the event that such Daycare fails to meet any of the foregoing requirements.
User Disputes: We make no representations or warranties about the quality of child care or other services provided by Daycares or about your interactions and dealings with other users of the Service. We do not recommend or endorse any specific Daycare. You agree that you are solely responsible for your conduct and interactions with any other user in connection with the Service, including but not limited to any events that occur after a Booking (e.g., a Daycare’s provision of child care services or occurrences on a Daycare’s premises), and Yaycare will have no liability or responsibility with respect thereto. Yaycare reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service. As described above, we conduct an initial review of documentation provided to us by Daycares during their account registration process to ensure that each Daycare is licensed, insured and has maintained a clean inspection record for the 12 months prior to their registration through the Service, but, unless explicitly specified through the Service (and then only to the extent specified), do not otherwise screen Daycares or Parents. Yaycare does not warrant than any information about Daycares is accurate, complete, conclusive or up-to-date. Opinions, advice, statements, offers, or other information or content made available by users on the Site or through the Service are those of their respective authors. Such authors are solely responsible for such content. Yaycare does not: (a) guarantee the accuracy, completeness, or usefulness of any information on the Site or available through the Service, or (b) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Service. Under no circumstances will Yaycare or its affiliates be responsible for any loss or damage resulting from: (i) your reliance on information or other content posted on the Site or transmitted to or by any user of the Site or Service; or (ii) reviews or comments made about you on the Site or through the Service by other users. You agree that Yaycare has no obligation to remove any reviews or other information posted through the Service about you or any other person or entity. Yaycare disclaims any liability whatsoever for any misstatements and/or misrepresentations made by any users of the Service. You should exercise caution and use your independent judgment before engaging a Daycare (if you are a Parent), providing child care services booked through the Service (if you are a Daycare), or otherwise interacting with users via the Service. Parents are solely responsible for making decisions that are in the best interests of themselves and their children. See also the sections below titled “Disclaimer of Warranties” and “Limitation of Liability.”
Email Communication: You must provide your electronic mail (“email”) address when registering to access any of the Services. We, and any Daycare with which you have made a Booking, may use your email address, when necessary, to communicate with you regarding the Service. Occasionally, we may also send you information that we deem to be of interest to you as a user of the Service. If you do not want to receive such marketing-related communications, you may opt out of those Services (a) by clicking on the “unsubscribe” link in such communications or (b) by emailing us at firstname.lastname@example.org. Please note that if you elect to opt-out of receiving marketing-related communications, Yaycare may still contact you via email with communications related to your use of the Service.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Yaycare of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Yaycare will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: Yaycare reserves the right to modify, suspend or discontinue, temporarily or permanently, the Service (or any part thereof including any user account) with or without notice. You agree that Yaycare will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Yaycare may establish general practices and limits concerning use of the Service. You agree that Yaycare has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Yaycare reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Yaycare reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we, and any Daycare with which you have made a Booking, may communicate with you regarding Yaycare and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Yaycare account information to ensure that your messages are not sent to the person that acquires your old number.
Consent to Communication: By registering through the Service and providing your contact information, you (a) agree that your registration constitutes an inquiry and/or application for purposes of telemarketing laws, and (b) consent to receive calls, text messages (including SMS and MMS messages), and other electronic messages (including those made using an automatic telephone dialing system or an artificial or prerecorded voice) from Yaycare and any Daycare with which you have made a Booking, and other matters at any phone number, email address, or other telephonic or electronic form of contact you provided, including your home, work, cellular, or other telephone number, even if that number is registered on a corporate, state, or national do not call registry. You also understand and agree that your consent to such calls, text messages and other electronic messages is not required to use the Services.
Your mobile service provider's standard data and messaging rates apply to all SMS correspondence. All charges are billed by and payable to your mobile service provider. You represent that you are 18 years of age and the owner or authorized user of the wireless device on which messages will be received, and that you are authorized to approve any applicable charges and to consent to receive calls, texts or other communications at the number you provide.
SMS message service subscribers may opt out of the SMS message service by replying with the keyword “STOP”, “END”, or “QUIT”. This process impacts only the future delivery of our SMS message offering and will not unsubscribe you from other SMS programs to which you may have subscribed. SMS message service subscribers may receive assistance for the SMS message service by replying with the keyword “HELP” to the message received.
If fees are charged to your wireless account invoice, Yaycare may provide your carrier with your applicable information in connection therewith. Your wireless carrier and other service providers may also collect data about your wireless device usage, and their practices are governed by their own policies. You acknowledge and agree that the SMS message service is provided via wireless systems which use radios (and other means) to transmit communications over complex networks. We will not be liable for any delays in the receipt of any SMS messages, as delivery is subject to effective transmission from your network operator. SMS message services are provided on an AS IS basis. We are not responsible for incomplete, lost, late, damaged, illegible or misdirected mobile messages or for any technical problems, malfunctions of any telephone lines, computer systems, servers, providers, hardware/software, lost or unavailable network connections or failed, incomplete, garbled or delayed computer transmission or any combination thereof. We are not responsible for any liability for damage to any computer system resulting from participation in or accessing or downloading information in connection with the SMS message service. We assume no responsibility for undeliverable mobile messages resulting from any form of active or passive mobile filtering by a user's mobile provider or for insufficient space in user's mobile phone account for messages. We do not guarantee that your use of the SMS message service will be private or secure, and Yaycare is not liable to you for any lack of privacy or security you may experience. You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the SMS message service.
Daycare Data: When you register for and use the Service as a representative of a Daycare, Yaycare will receive certain information about your facility (the “Daycare Data”). You acknowledge and agree that Yaycare may use such Daycare Data internally to improve and expand the Services and for other business purposes and that Yaycare may share Daycare Data with third parties, including its current and prospective business partners.
Conditions of Use
User Conduct: You are solely responsible for all images, information, data, text, photographs, graphics, video, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kinds of content and/or uses that are illegal or prohibited by Yaycare. Yaycare reserves the right to investigate and take appropriate legal action against anyone who, in Yaycare’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. If you are a Parent, the Service is only for your personal use.
Bookings, Payments and Fees
The Service may be used to find and offer child care services and to facilitate payment, but all transactions conducted via the Service are between Parents and Daycares.
Payment Processing: WE DO NOT PROCESS PAYMENT FOR ANY BOOKINGS. To facilitate Bookings via credit card or debit card, we use Stripe, Inc. (“Stripe”), a third-party payment processor. These payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to these Terms of Service, users that use the payment functions of the Service also agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Yaycare enabling payment processing services through Stripe, you represent and warrant to Yaycare that any information about your payment instruments and/or bank accounts is true and that you are authorized to use the payment instrument and/or bank account, as applicable. You also authorize Yaycare to share such information and other transaction information related to your use of the payment processing services provided by Stripe. Yaycare assumes no liability or responsibility for any payments you may make through the Service.
For Parents: To make a Booking, please follow the procedures set out on the relevant page of the Service. Details of the prices charged for a Booking, and the procedures for payment are displayed on or through the Service. The price of any Booking is the price in force at the time of Booking and is determined in the sole discretion of the applicable Daycare. Yaycare will collect payment for Bookings on the applicable Daycare’s behalf as their limited payment collection agent, and payments to Yaycare for Bookings will be considered the same as payment made directly by you to the Daycare. You will be required to provide Yaycare with information regarding your credit or debit card or other payment instrument. You authorize Stripe to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in payment for your Bookings. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
You agree to pay Yaycare the amount that is specified in your Booking in accordance with these Terms of Service and the terms of the applicable Daycare. If you dispute any charges you must let Yaycare know within thirty (30) days after the date that Yaycare charges you. Daycares may change the prices they charge for a Booking on Yaycare at their discretion. Your Booking after any price change becomes effective constitutes your agreement to pay the changed amount. You are responsible for all taxes associated with the Services other than U.S. taxes based on Yaycare’s net income.
Referrals and Promotional Codes: Yaycare may, in its sole discretion, create promotional codes ("Promo Codes") that may be redeemed for discounts on future Services, or other features or benefits related to the Service, subject to any additional terms that Yaycare establishes. You agree that Promo Codes: (a) must be used for the intended audience and purpose, and in a lawful manner; (b) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Yaycare; (c) may be disabled by Yaycare at any time for any reason without liability to Yaycare; (d) may only be used pursuant to the specific terms that Yaycare establishes for such Promo Code; (e) are not valid for cash; and (f) may expire prior to your use. Yaycare reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that Yaycare determines or believes that the use of the use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of these Terms of Service.
For Daycares: We charge a flat fifteen percent (15%) fee for Bookings made using our Services. You will be required to provide Yaycare with information regarding your bank account. You authorize Stripe to store your bank account information to avoid interruptions in receiving the proceeds from Bookings, net of Yaycare’s fee. Once a Parent pays for a Booking, the net proceeds of such Booking after payment of Yaycare’s fee will be automatically transferred to the bank account on file that you provided to Yaycare through your account within two (2) days, unless your account status with Stripe becomes “unverified” in which case the funds due to you will be held indefinitely until your account with Stripe achieves a “verified” status. Please contact Stripe directly for more information if your account status becomes “unverified.” Booking fees are final and non-refundable, unless otherwise determined by Yaycare.
Refunds and Cancellations: Booking payments paid by you are final and non-refundable, unless otherwise determined by Yaycare. Parents and Daycares may also cancel Bookings in certain circumstances. Cancellations are governed by our Cancellation Policy.
Yaycare Mobile Software Applications
Apple-Enabled Software Applications: Yaycare offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Yaycare and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Google-Sourced Software: The following applies to any Software application you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms of Service are between you and Yaycare only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Yaycare, and not Google, is solely responsible for Yaycare’s Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (vi) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Yaycare’s Google-Sourced Software.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Yaycare, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Yaycare from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Yaycare, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Yaycare.
The Yaycare name and logos are trademarks and service marks of Yaycare (collectively the “Yaycare Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Yaycare. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Yaycare Trademarks or third-party trademarks or service marks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Yaycare Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Yaycare be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Yaycare does not pre-screen content, but that Yaycare and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Yaycare and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Yaycare, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the reviews, comments, content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Yaycare and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable (through multiple tiers), perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Yaycare are non-confidential and Yaycare will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Yaycare may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Yaycare, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: Yaycare respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Yaycare of your infringement claim in accordance with the procedure set forth below.
Yaycare will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Yaycare’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:
2036 Dogwood Drive, Scotch Plains, NJ 07076 or 212-233-0158
To be effective, the notification must be in writing and contain the following information:
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Yaycare will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Yaycare has adopted a policy of terminating, in appropriate circumstances and at Yaycare's sole discretion, users who are deemed to be repeat infringers. Yaycare may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Yaycare has no control over such sites and resources and Yaycare is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Yaycare will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Yaycare is not liable for any loss or claim that you may have against any such third party.
Social Networking Services
In addition, Yaycare is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Yaycare is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Yaycare enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
You agree to release, indemnify and hold Yaycare and its affiliates and its and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YAYCARE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
YAYCARE MAKES NO WARRANTY (I) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THAT THE INFORMATION AND RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THAT THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR (V) REGARDING THE SUITABILITY OF ANY USER OF THE SERVICE TO PROVIDE SERVICES AS A CHILD CARE PROVIDER. YAYCARE DOES NOT ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY REVIEW, OPINION, ADVICE OR STATEMENT MADE BY ANY OTHER PARTY THAN YAYCARE.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YAYCARE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF YAYCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL YAYCARE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID YAYCARE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Yaycare, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, and any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Yaycare are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND YAYCARE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND YAYCARE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Yaycare is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Yaycare should be sent to 2036 Dogwood Drive, Scotch Plains, NJ 07076 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Yaycare and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Yaycare may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Yaycare or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Yaycare is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://info.adr.org/consumer-arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Yaycare and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Yaycare agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $10,000 or less, at your request, Yaycare will pay all Arbitration Fees. If the value of relief sought is more than $10,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Yaycare will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Yaycare will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Yaycare agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Yaycare written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
NOTWITHSTANDING ANYTHING TO THE FOREGOING IN THIS ARBITRATION AGREEMENT, IF YOU REPRESENT A DAYCARE OR OTHER ENTITY, OR ARE ENTERING INTO THIS AGREEMENT IN ANY CAPACITY OTHER THAN AS AN INDIVIDUAL REPRESENTING YOURSELF, SUBSECTIONS (A), (D) AND (E) ABOVE ARE HEREBY DELETED AND REPLACED IN THER ENTIRETY WITH THE CORRESPONDING PROVISIONS BELOW AND SUBSECTION (H) ABOVE DOES NOT APPLY TO YOU.
a. Agreement to Arbitrate
This section (including subsections (a) through (g)) is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Yaycare, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by entering into these Terms of Service, you and Yaycare are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless we and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
You agree that Yaycare, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Yaycare believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Yaycare may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Yaycare may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Yaycare will not be liable to you or any third party for any termination of your access to the Service. All provisions of these Terms of Service which by their nature should survive termination will survive termination, including, without limitation, the sections titled “Access and Use of the Service—Consent to Communication, —User Disputes, and —Daycare Data,” “Intellectual Property Rights,” “Social Networking Services,” “Indemnity and Release,” “Disclaimer of Warranties,” “Limitation of Liability,” “Dispute Resolution By Binding Arbitration,” “User Disputes” and “General.”
These Terms of Service constitute the entire agreement between you and Yaycare and govern your use of the Service, superseding any prior agreements between you and Yaycare with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. The law of the State of New York will govern these Terms of Service, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Yaycare agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in New York, New York. The failure of Yaycare to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Yaycare, but Yaycare may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service. If any of these Terms of Service are deemed invalid, void, or for any reason unenforceable, that condition will be deemed severable and will not affect the validity and enforceability of any remaining condition.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254, (800) 952-5210 or (800) 326-2297 (hearing impaired only). You may contact us at Yaycare Inc., 2036 Dogwood Drive, Scotch Plains, NJ 07076 or 917-575-3964.
Questions? Concerns? Suggestions?
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.