The Listing. By enrolling as a Commercial Provider, You authorize Daycare Discover to publish certain information (“Content”) about You, submitted by You in the enrollment process or thereafter, on the Site in the form of a listing (“Listing”). Daycare Discover reserves the right to refuse any request for a Listing or to cancel any Listing for any reason, including but not limited to the failure to fulfill the obligations set forth in this Agreement, or for no reason. By submitting Content to the Site You automatically grant, and You represent and warrant that You have the right to grant to Daycare Discover, during the term of this relationship, an irrevocable, perpetual, non-exclusive, fully paid, license to use, display, reproduce, modify and distribute such Content and to prepare derivative works of such Content, and to grant and authorize sub-licenses of the foregoing, in each case: (i) for the purposes of identifying You to Users, or otherwise fulfilling Daycare Discover’s obligations hereunder, (ii) to promote and market the Site and Your representation thereon, and (iii) for purposes otherwise expressly approved in advance, in writing, by You. You further represent and warrant that public posting and use of Your Content by Daycare Discover will not infringe or violate the rights of any third party.
Listing Contents. The Listing will contain information You provide to Daycare Discover. You agree to provide true, accurate, current and complete information about Your business and Your products/services. Failure to provide information in such manner may result in Daycare Discover suspending or terminating Your Listing. Daycare Discover reserves the right to change the style, form, content and appearance of the Site at any time. You agree to maintain the accuracy of information contained in Your Listing. If any information included in your Listing is or becomes inaccurate, you will promptly update Your Listing and notify Daycare Discover. The Listing and any changes thereto are subject to approval by Daycare Discover. Certain changes that You make to Your Listing may require review by Daycare Discover prior to posting, which review will be performed within ten (10) business days of submission. If such changes are approved, they will be promptly reflected in your Listing. If they are declined, Daycare Discover will notify you as to the reason for the rejection and provide You an opportunity to revise and re-submit them. Use of Listing Contents. All content created by Daycare Discover to describe Your business and Your product/services cannot be used by You. This includes but is not limited to photographs, reviews, graphics or any other intellectual property developed by Daycare Discover under this Agreement. You may not use these contents anywhere online (Your website or other third party websites) or offline (Your printed materials or third party printed materials.)
Images Copyright. All images appearing in the Pro and Verified Provider profiles of the Daycare Discover website are the exclusive property of Daycare Discover and are protected under the United States and International Copyright laws. The images may not be reproduced, copied, transmitted or manipulated without the written permission of Daycare Discover. Use of any image as the basis for another photographic concept or illustration (digital, artist rendering or alike) is a violation of the United States and International Copyright laws. All images are copyrighted 2015 Daycare Discover.
Daycare Discover Responsibilities with Respect to Referrals. After publication of the Listing on the Site, Daycare Discover will forward to You requests for information or request for scheduling a tour completed on the Site (“referrals”) and will track any other requests made by Users to the extent Daycare Discover has the means to do so. The number of referrals that will be forwarded will depend on the type of Listing You have.
Commercial Provider Responsibilities with Respect to Referrals. You agree to respond to all referrals as soon as possible, but in any event no more than two (2) business days after receipt. You agree to utilize referrals solely for purposes directly related to fulfilling or responding to them. Without limiting the foregoing, You agree not to distribute or re-sell any referrals information whatsoever to any third party without the express consent of the User or to utilize any referrals for purposes of cross-selling products and services not sold by You. Further, You agree to comply with all applicable privacy, marketing and other laws and regulations in connection with Your handling and use of referrals information, including without limitation any and all obligations under the CAN-SPAM Act of 2006 (CAN-SPAM), and the Telephone Consumer Protection Act of 1991 (TCPA). To the extent You are responsible for tracking certain referrals, You agree to accurately track such referrals and to report to Daycare Discover all activity related to them on a monthly basis. You agree to adhere to the substance and spirit of the following Code of Conduct provisions:
You will honestly and accurately represent Your products and services, and accreditations (if any) to Users.
You will interact with Users in a polite, professional manner, limiting the number of calls-per-day within reasonable standards, calling during normal household hours.
Other. Daycare Discover is not responsible for any failure to receive referrals due to spam filters, address-book filters, filters imposed by internet service providers, or failure on the part of Your communications vendors to deliver the referrals without any negligence on the part of Daycare Discover. Any other provision of this Agreement notwithstanding, Daycare Discover shall have the right to withhold the forwarding of any referrals information to You for any reason in its sole discretion, provided that You will be charged only for those referrals that are actually forwarded or directed to You.
Fees. During the enrollment process, You can choose a Free Listing or a Premium Listing. If You select a Premium Listing during the enrollment process (or upgrade from a Free Listing to a Premium Listing), You agree to pay fees to Daycare Discover at a set rate regardless of the number of referrals you receive (“Set Fees”), plus any applicable sales or other taxes. The Set Fees, plus any applicable sales or other taxes, are also referred to in this Agreement as the “Fees”. By completing and submitting the information in the enrollment process, You authorize Daycare Discover to compute and charge to Your credit card for the Fees You agreed to during the enrollment process. If You have agreed to pay Set Fees, You agree that Daycare Discover will charge you upfront for the total fee for the subscription term You select, unless otherwise agreed to by You and Daycare Discover. You also agree that Daycare Discover will automatically renew your subscription at the end of each subscription term, and charge your credit card upfront for the total current fee for that subscription term, unless You have canceled Your subscription before the end of Your prior subscription term. You may pause or cancel Your participation in the Referral Program at any time in accordance with the procedures established by Daycare Discover from time-to-time to pause or cancel Your participation. However, if You cancel or pause Your participation, You will not be entitled to a refund of any Set Fees You previously paid or continue to owe Daycare Discover. Daycare Discover reserves the right to change Fee prices at any time provided that Daycare Discover will provide at least thirty (30) days’ notice to You, via an email communication sent to the email address on file in your account profile, before any price change goes into effect.
Refund/Credit Procedure. If You have agreed to pay Set Fees and Daycare Discover terminates Your participation in the Referral Program without cause during a subscription period, You will be entitled to a pro-rata refund of the Set Fees You paid for that subscription period based on the amount of time remaining in the period. In all other instances, Set Fees paid to Daycare Discover are final and nonrefundable.
Failure to Pay. In the event of non-payment, Daycare Discover reserves the right to suspend or terminate Your account until such charges are paid. Daycare Discover may also charge interest on undisputed balances unpaid for more than thirty (30) days, in which case interest charges will accrue from the 31st day with respect to any unpaid, undisputed amount at a rate of 1% per month or the maximum rate allowed by law, whichever is lower. Daycare Discover shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payments from You.
4. Use of Marks
Commercial Provider Marks. You hereby grant to Daycare Discover an irrevocable, perpetual, non-exclusive, fully paid, right and license during the term of this relationship, subject to the terms and conditions hereof, to use Your logo(s), tradename(s) or trademark(s) (the “Marks”) or those of Your affiliates, (i) for the purposes of identifying You to Users, identifying You on the applicable service category pages of the Site, or otherwise Daycare Discover’s obligations hereunder, (ii) to promote and market the Site and Your representation thereon, and (iii) for purposes otherwise expressly approved in advance, in writing, by You. You further represent and warrant that Daycare Discover’s use of your Marks in accordance with these terms will not infringe or violate the rights of any third party.
General. Neither party may represent or imply to a User or other third party that it is acting on behalf of the other party hereto or that the other party hereto has approved or endorsed its products or services. All goodwill associated with use of Your Marks shall inure to the benefit of You and/or Your affiliate(s), as applicable.
5. Term and Termination
If you have agreed to pay Set Fees, You agree that Your subscription will be automatically extended for successive renewal periods of the same duration as Your original subscription unless You cancel Your subscription before the end of Your current subscription term. You and Daycare Discover each reserve the right to terminate the relationship with the other party at any time for any reason or no reason upon two (2) business days’ notice to the other party. In the event of termination by either party any payments due from either party to the other party will be made immediately. Each party reserves the right to terminate this Agreement immediately upon notice to the other party in the event the other party should commit or otherwise become associated with, for any reason, any act that would reasonably be expected to have an adverse impact on the reputation or public image of the terminating party. Daycare Discover reserves the right to send a notice of such termination to Users with whom Daycare Discover has reason to believe you have corresponded.
By agreeing to the terms of this Agreement, You agree to indemnify, defend and hold harmless Daycare Discover and its officers, directors, employees, stockholders, representatives and agents from and against any and all claims, losses, expenses or demands of liability, including attorneys’ fees and costs incurred by them in connection with any claim by a third party (including an intellectual property claim) arising out of: (i) any breach by You of Your obligations under this Agreement, (ii) any willful misconduct or negligent act, omission or misrepresentation by You, Your agents or Your employees, (iii) any violation by You of any federal, state or local, law, rule or regulation, (iv) any disputes between You and any User, or (v) the violation or alleged violation of third-party intellectual property rights or proprietary rights by any Listing or other materials and content you submit, post or transmit through the Site or otherwise provide to Daycare Discover for inclusion on the Site. You may not settle any claim subject to indemnification without the prior written consent of Daycare Discover.
7. Warranties; Disclaimers
Warranties. Each party represents and warrants to the other party that (i) this Agreement constitutes a valid and binding obligation of such party, enforceable in accordance with its terms; (ii) such party has full power and authority to enter into this Agreement and perform its obligations hereunder; (iii) the making of and performance under this Agreement by such party does not violate any agreement or obligation existing between such party and any third party; (iv) the making of and performance of this Agreement does not infringe upon any third parties’ rights and (v) each party shall, at all times, comply with all applicable federal, state and local laws, regulations and ordinances. You represent, warrant and covenant that: (i) all of the information provided to Daycare Discover hereunder, including information submitted in connection with the Listing, is truthful and not misleading, fraudulent, defamatory, libelous, threatening, harassing, or obscene; (ii) You are authorized to provide the products and services set forth in the Listing; (iii) You have the right to use each copyright, trademark, trade name, service mark, graphic, photograph, or any other intellectual property that you provided to Daycare Discover in the way it is used under this Agreement; and (iv) any advertising copy or materials and any linked advertising shall comply with all applicable laws and regulations.
DISCLAIMERS. OTHER THAN SET FORTH HEREIN, DAYCARE DISCOVER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE DAYCARE DISCOVER SITE, ANY PRODUCTS, SERVICES OR INFORMATION PROVIDED THROUGH THE DAYCARE DISCOVER SITE, OR THE ACCURACY OF, OR RESULTS TO BE OBTAINED BY USING, THE DAYCARE DISCOVER SITE. Daycare Discover is not involved in any actual transactions between Users and You through the Referral Program. Thus, Daycare Discover has no control over the interest or ability of Users to purchase items or pay for services or the suitability of any User for Your items or services. Daycare Discover cannot and does not control whether or not Users will complete the purchase of services for which they have requested information. Because user authentication on the Internet is difficult, Daycare Discover cannot and does not guarantee that each User is who he or she professes or claims to be. You assume all risk when using the Site, including but not limited to all of the risks associated with any online or offline interactions with Users of the Site, and Daycare Discover disclaims any liability arising out of or in any way connected with such interactions.
8. Ratings & Reviews
Ratings and reviews posted on the Site are the opinions of their respective authors. Such authors are solely responsible for such content. Daycare Discover does not 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 Daycare Discover be responsible for any loss or damage resulting from reviews or comments made about you on the Site by other Users.
You understand and agree that Daycare Discover may review and delete any Content, in each case in whole or in part, that in the sole judgment of Daycare Discover violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users of the Site. We reserve the right to remove, screen, edit, or reinstate ratings and reviews from time to time at our sole discretion and without notice to you. You may encourage others to write reviews about your business. However, you agree not to, and will not assist or enable others to write a fraudulent or defamatory review, trade reviews with other businesses, compensate anyone to write a review on your behalf, or write a review that you were paid for either directly or indirectly by the business being reviewed. You do have the right to rebut a review by posting a response to a current review of your business.
9. Limitation of Liability
Incidental Damages and Aggregate Liability. In no event will Daycare Discover be liable for any indirect, special, incidental, punitive, or consequential damages, losses or expenses arising out of or relating to Your participation in the Referral Program, including without limitation damages related to any information received from the Site, removal of content from the Site, including profile information, any email distributed to any User or any linked web site or use thereof or inability to use by any party, or in connection with any termination of Your participation in the Referral Program or ability to access the Site, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Daycare Discover or its representatives are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL DAYCARE DISCOVER’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID BY YOU IN THE PREVIOUS TWELVE (12) MONTHS, OR, IF YOU HAVE NOT PAID DAYCARE DISCOVER FOR THE USE OF ANY SERVICES, THE AMOUNT OF US $25.00 OR ITS EQUIVALENT.
No Liability for non-Daycare Discover Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DAYCARE DISCOVER BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, PUNITIVE, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM INTERACTIONS WITH OTHER USERS OF THE SITE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
Unless otherwise specified herein, in the enrollment process or on our Site, any notice by one party hereto to the other shall be in writing (which may include email) and either personally delivered, delivered by Internet email, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet email address or the mailing address specified in your account profile and to us at Daycare Discover, LLC: 817 Hillside Ave. Glen Ellyn, IL 60137, Attn.: Legal Department. All paper notices will be deemed effective on the date of personal delivery, upon signed receipt from an overnight courier, or five days after deposit with the U.S. Postal Service, as applicable. All email notices will be deemed effective when sent by us to the email address specified in your account, whether actually received or not, and all notices on our Site will be deemed effective upon posting on our Site, whether or not reviewed by you.
Daycare Discover does not approve of, or endorse, any product or service by electronically publishing the Listing. Daycare Discover may publish entries or listings for any other party at any time. You and Daycare Discover are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of law provisions. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent. No principle of construction or rule of law that provides that an agreement be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall apply to the terms and conditions of this Agreement. The invalidity, illegality or unenforceability of any term or provision of this Agreement shall in no way effect the validity, legality or enforceability of any other term or provision of this Agreement. In the event a term or provision is determined to be 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 Agreement shall be enforceable as so modified. No waiver of any default in performance of this
Agreement by either party, or waiver of any breach or a series of breaches of any of the terms, covenants or conditions of this Agreement shall constitute a waiver of any subsequent breach or a waiver of such terms, covenants or conditions. Neither party may assign, sell, transfer, delegate or otherwise dispose of this Agreement or any rights or obligations hereunder without the prior written consent of the other party, except that either party may assign this Agreement to any affiliate or any successor entity in a merger, consolidation, business combination or sale of all or substantially all of its assets. Any purported assignment, transfer, or delegation in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. Headings herein are for convenience of reference only and shall not be considered in any interpretation of this Agreement.