Last updated: July 21, 2016
ATTENTION! Important: the following terms and conditions govern use of the Service Technology (defined in Section 1 below) made available by DaySmart Software Inc. (“DaySmart”) and its licensors and suppliers. By registering for or using any of the Service Technology, Customer (defined in Section 1 below) hereby agrees to be bound by the terms of this 123Pet Software Cloud and Add-On Services Agreement (this “Agreement”). If Customer does not agree to the terms of this Agreement, Customer may not use the Service Technology. If you are acting on behalf of another person or entity, you represent and warrant that you have the authority to bind such person or entity to this Agreement.
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms will have the meaning ascribed below:
- “Content” means, other than User Data (defined in Section 9 below), the information, materials, data, text, images or other content that is submitted or otherwise processed via the Service Technology in connection with Customer’s use of the Service Technology (including use by Customer’s authorized users and clients).
- “Core Services” means the hosted client management services made available via DaySmart’s website and Mobile App, excluding the Optional Features.
- “Customer” means the natural person or entity that enters into this Agreement.
- “Mobile App” means the mobile application made available by DaySmart through the Apple App Store or Google Play that enables access to and use of the Services.
- “Optional Features” means any optional, add-on hosted service offerings that are offered separately from the Core Services or Software (on a one-time or subscription basis), and may be used in connection with the Core Services or Software. Optional Features may include online booking, remote access, Demandforce tools, online backup, text messaging and email messaging.
- “Service Technology” means the Services and the Mobile App.
- “Services” means any or all of the hosted services offered by DaySmart and its licensors and suppliers under this Agreement, including the Core Services and Optional Features.
- “Software” means DaySmart’s locally installed client management software that may integrate or otherwise interact with certain Optional Features.
2. SCOPE. This Agreement applies to Customer’s and its authorized users access to and use of any Service Technology, but does not apply to the installation and use of the Software, which is subject to a separate license agreement. The terms in the attached Exhibit A will only apply if Customer accesses or uses the Mobile App.
3. RIGHT TO USE SERVICES. Subject to the terms of this Agreement, Customer may access and use the Services for its internal business purposes (and not for personal, family or household purposes) during the subscription period purchased by Customer. Customer will comply with applicable Services restrictions, including any limitations on the amount of users it may authorize to access and use the Services on its behalf. Customer shall be responsible for all access and use of the Services under its account, and for its authorized users’ compliance with the terms of this Agreement. DaySmart reserves the right, in its sole discretion, to change, update or enhancement the Services at any time. DaySmart may add or remove functionalities or features, and may suspend or stop all or a portion of the Services.
5. RESTRICTIONS ON USE. Customer shall not: (A) allow any account password to be used by more than one individual; (B) modify, translate, copy, adapt, reverse engineer (except to the extent applicable laws specifically prohibit such restriction), decompile, disassemble, or create derivative works based on the Service Technology; (C) access or use the Service Technology in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (D) attempt to gain unauthorized access to the Service Technology or any other DaySmart customer’s account; (E) use the Service Technology in any manner that is not in accordance with applicable documentation and all applicable laws; (F) rent, lease, distribute, timeshare, use as a service bureau, grant a security interest in, transfer rights to, or make available the Service Technology to any third party; (G) use the Service Technology to build a competitive product or service or to benchmark with a third-party product or service; (H) interfere with or disrupt servers or networks used by DaySmart to provide the Service Technology, or harass or interfere with another customer’s full use and enjoyment of the Service Technology; (I) cause, in DaySmart’s sole discretion, inordinate burden on the Service Technology or DaySmart’s system resources or capacity; or (J) remove any proprietary notices or labels displayed in the Service Technology or on its output.
6. SENSITIVE DATA. Customer acknowledges and agrees that the Services are not suitable for hosting or processing any Sensitive Personal Information. “Sensitive Personal Information” means any personal information that: (a) must be protected in accordance with specific or heightened security requirements imposed by applicable law or industry standards; or (b) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure. Examples of Sensitive Personal Information include, but are not limited to, government-issued identification numbers (such as driver’s license numbers or Social Security numbers), financial account numbers, payment card data, and “protected health information,” as defined by the Health Insurance Portability and Accountability Act. Customer will ensure that no Sensitive Personal Information is hosted or otherwise processed via the Services.
7. CUSTOMER’S ACCOUNT. When registering to use the Services, Customer must: (a) provide true, accurate, current and complete information (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Customer must keep its account credentials secure and protect its account from unauthorized access and use. Customer is responsible for (y) managing access privileges for any user who may access the Service Technology on its behalf, and (z) ensuring that Customer’s users only use the Service Technology in accordance with the terms of this Agreement. Customer must immediately notify DaySmart of any unauthorized access or use of Customer’s account.
8. OWNERSHIP. DaySmart and its licensors and suppliers shall retain all title, ownership rights and interest in and to the Service Technology. Customer acknowledges and agrees that the copyright, patent, trademark, trade secret, and all other intellectual property rights of whatever nature in the Service Technology are and shall remain the property of DaySmart and its licensors and suppliers, and nothing in this Agreement, other than the limited license granted in Exhibit A, should be construed as transferring any aspects of such rights to Customer.
10. CUSTOMER MATERIALS.
- Rights. Customer hereby grants DaySmart a non-exclusive, sublicensable, fully transferable, license to use, reproduce, create derivative works of, distribute, publicly display and perform the Content to operate and improve the Service Technology, develop new products and services, and as otherwise expressly permitted in this Agreement. Customer represents and warrants that (i) it has all the rights in the Content necessary to grant the foregoing license, and (ii) the Content and User Data (“Customer Materials”) do not infringe or violate any applicable law, intellectual property rights or any other rights of any person.
- Requirements. Customer will: (a) be solely responsible for the nature, quality and accuracy of the Customer Materials; (b) ensure that the Customer Materials (including the storage or transmission thereof) comply with this Agreement and any and all applicable laws and regulations; (c) promptly handle and resolve any notices and claims relating to the Customer Materials, including any notices sent to Customer by any person claiming that any Customer Materials violate or infringe applicable law or any person’s rights; (d) ensure the Customer Materials do not contain harmful or malicious code that could damage, burden or interfere with any computer or network; and (e) be solely responsible for maintaining backup copies of the Customer Materials. DaySmart retains the right to edit, remove or otherwise prevent delivery of any Content to or from the Service Technology if DaySmart deems reasonably necessary to protect the Service Technology, DaySmart’s customers, DaySmart’s networks and computer systems, or to prevent Customer from breaching this Agreement.
- Fees. Customer will pay the fees applicable for the Services (“Fees”) as specified on DaySmart’s website. The price stated for the Services excludes all taxes and charges, unless stated otherwise. Customer is responsible for any taxes and for all other charges incidental to using the Services (for example, third-party data charges). DaySmart will notify Customer in advance, either through the Service Technology or to an administrator’s email address, if DaySmart changes the price of the Services. If Customer doesn’t agree to these price changes, it must cancel and stop using the Service Technology. Any cancellation will be effective upon expiration of the current payment period for the Services.
- Payment. Customer will pay the Fees using a valid payment method acceptable to DaySmart. Customer represents and warrants that it is authorized to use any payment method it uses to pay the Fees. Customer hereby authorizes DaySmart or its third party designee to charge Customer’s designated payment method for the total amount of Fees, including any applicable taxes and other charges described via the Service Technology. If the payment method cannot be verified, is invalid or is otherwise not acceptable to DaySmart, Customer’s order may be suspended or cancelled. Certain of the Services are offered on a subscription basis with auto-renewing payments (“Subscription Services”). The billing period for each type of Subscription Service will be as specified via the Service Technology at the time of registration. When Customer registers for any Subscription Service, it expressly acknowledges and agrees that (i) DaySmart (or its designated third-party payment processor) is authorized to charge Customer’s payment method on a recurring basis for the Subscription Service (in addition to any applicable taxes and other charges) at the then-current rates for as long as the Subscription Service continues, and (ii) the Subscription Service will continue until Customer cancels it or DaySmart suspends or stops providing access to the Services. To cancel any Subscription Service, Customer must contact DaySmart through the online help center (http://support.daysmart.com/) and follow the instructions in the email DaySmart sends in response to the cancellation request. Customer must cancel a Subscription Service before the start of the next billing period in order to avoid charges for the next billing period’s Fees. Following any cancellation, Customer will continue to have access to the Subscription Services (subject to the terms of this Agreement) through the end of Customer’s current billing period. Except as specifically set forth in the Service Technology, all Fees are prepaid for the designated subscription period and are non-refundable.
- Trials. DaySmart may offer certain limited trial period access to Subscription Services without charge. The last day of the trial period signifies the due date of the first payment of Fees for the Subscription Service.
12. SUSPENSION. DaySmart reserves the right, to temporarily suspend Customer’s access to the Services at any time in DaySmart’s sole discretion if DaySmart believes Customer is or is likely to be in breach of the terms of this Agreement or if DaySmart deems reasonably necessary to protect the Service Technology, DaySmart’s customers, or DaySmart’s networks and computer systems.
13. TERM; TERMINATION. This Agreement commences upon Customer’s use of the Service Technology and shall remain in full force until terminated in accordance with this section.
- Termination By DaySmart. DaySmart may terminate this Agreement immediately upon notice to Customer if (1) Customer breaches any term of this Agreement; or (2) any of the following take place: (i) Customer makes any general assignment or general arrangement for the benefit of its creditors; (ii) the filing of a petition to have Customer adjudged bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; (iii) the appointment of a trustee or receiver to take possession of substantially all of Customer’s assets or interest in this Agreement; or (iv) the attachment, execution or other judicial seizure of substantially all of Customer’s assets or interest in this Agreement.
- Termination for Convenience. Either party may terminate the Agreement at any time upon 30 days advance written notice to the other party.
- Effect of Termination. Any rights and licenses granted to Customer under this Agreement will terminate immediately upon termination of this Agreement. Termination shall not relieve Customer’s obligation to pay all Fees which are due and payable as of the date of termination. Sections 1, 8, 9, 10, 11, 13(c), 14, 15, 17, 18 and 20 will survive expiration or termination of this Agreement.
14. DISCLAIMER. THE SERVICE TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. NO DEALER, AGENT OR EMPLOYEE OF DAYSMART IS AUTHORIZED TO MAKE ANY OTHER WARRANTY REGARDING THE SERVICE TECHNOLOGY. DAYSMART, AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICE TECHNOLOGY, THAT THE SERVICE TECHNOLOGY IS SUITABLE FOR CUSTOMER’S BUSINESS, OR THAT THE SERVICE TECHNOLOGY CAN BE USED BY CUSTOMER IN COMPLIANCE WITH ALL LAWS APPLICABLE TO CUSTOMER’S BUSINESS. DAYSMART AND ITS SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING AS TO TITLE AND NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. ALL CALCULATIONS THAT THE SERVICE TECHNOLOGY PERFORM (INCLUDING, BUT NOT LIMITED TO CALCULATIONS RELATING TO TICKET/SALES INFORMATION, TAXES, CLIENTS, TOTALS, SERVICES, OR PRODUCTS) ARE FOR REFERENCE ONLY, AND SHOULD BE VERIFIED BY MEANS INDEPENDENT OF THE SERVICE TECHNOLOGY. CUSTOMER ASSUMES ENTIRE RISK AS TO THE SELECTION AND SUITABILITY OF THE SERVICE TECHNOLOGY, FOR ITS USE IN ACCORDANCE WITH APPLICABLE LAW, AND FOR THE RESULTS OBTAINED FROM THE SERVICE TECHNOLOGY.
15. LIMITATION OF LIABILITY.
- UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, WILL DAYSMART OR ITS SUPPLIERS OR RESELLERS HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, OR LOSS OF PROFITS, EVEN IF DAYSMART HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL THE AGGREGATE LIABILITY OF DAYSMART ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT.
16. PRODUCT SUPPORT. Although DaySmart may provide voluntary support to Customer in connection with the Service Technology, DaySmart is not obligated to provide such support except for specific technical support purchased pursuant to monthly subscription Fees. The support policies and practices of DaySmart are subject to change without notice or obligation and may be viewed at the following website: http://test65.mlivehosted.com/policies/. Customer is solely responsible for incorporating any customer support information provided by DaySmart into its use of the Services and is solely responsible for any consequences thereof.
17. CONFIDENTIAL INFORMATION. In connection with this Agreement, Customer may obtain or receive non-public confidential information of DaySmart, including, but not limited to the Service Technology, software, processes, designs, plans, methods, data, or other non-public information of DaySmart (collectively, “DaySmart’s Confidential Information”). Customer will not use DaySmart’s Confidential Information except to exercise rights granted under this Agreement, and will not disclose DaySmart’s Confidential Information to any third party except to individuals authorized to use the Service Technology on its behalf. Customer will protect DaySmart’s Confidential Information from unauthorized access, use or disclosure, including (without limitation) by binding its employees, agents, and contractors to confidentiality obligations at least as strict as those contained in this Agreement. Customer acknowledges that DaySmart’s Confidential Information, regardless of form, is, and will always remain, the sole and exclusive property of DaySmart. Customer further acknowledges that the unauthorized use of DaySmart’s Confidential Information would cause irreparable injury to DaySmart. Consequently, Customer agrees that money damages would not be a sufficient remedy for a breach of this provision, and, in addition to all other remedies to which DaySmart may be entitled, DaySmart will also be entitled to specific performance and injunctive or other equitable relief as remedies for such breach or threatened breach by Customer. Customer agrees that on request or at the termination of this Agreement, Customer will immediately return all DaySmart’s Confidential Information and any other related tangible materials to DaySmart without retaining any copies, notes or extracts thereof.
18. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless, DaySmart, and its employees, officers, directors, agents, successors, assigns, representatives and third party contractors (“Indemnitees”) from and against all claims, suits, liabilities, damages, costs, fees, expenses, losses, costs and expenses (including attorneys’ fees) arising out of or resulting from (i) breach of this Agreement by Customer, (ii) Customer’s use of the Services, or (iii) any claims or allegations arising from or related to the Customer Materials, including any claim that the Customer Materials infringe, violate or misappropriate any rights of any third party, including any intellectual property rights or privacy rights. DaySmart will have the right to control the defense of any such claim, at Customer’s expense.
19. MODIFICATION. DaySmart reserves the right to change or modify the terms of this Agreement or any other policies related to use of the Services at any time and at its sole discretion by posting the amended Agreement to DaySmart’s website. Customer’s continued use of the Services following the posting of these changes or modifications constitutes Customer’s acknowledgement and agreement to such changes or modifications.
20. GENERAL TERMS
- Governing Law. This Agreement shall be governed by the laws of the State of Michigan without regard to its conflict of law principles. All disputes arising under this agreement shall be resolved in the applicable state or federal courts of Michigan. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
- Integration. This Agreement constitutes the entire understanding of the parties and is intended as the final expression of their agreement. This Agreement supersedes any and all prior agreements, oral or written, expressed or implied, between the parties hereto with respect to the Services and the terms herein.
- Non-Waiver. No waiver by DaySmart of any breach of any provision hereof shall constitute a waiver of that or any other provision hereof.
- Force Majeure. DaySmart will not be liable for any failure to perform its obligations arising from circumstances beyond its reasonable control, including, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, Internet service provider failure or delay, or denial of service attack.
- Notice. Except as otherwise specified in this Agreement, DaySmart will provide any required notices to Customer under this Agreement by email to the email address associated with an administrator account. Customer will provide any required notices to DaySmart under this Agreement by certified mail to DaySmart Software Inc., 3520 Green Court Suite 250 Ann Arbor, MI 48105. In each case, notice must be in English and will be deemed effective upon receipt.
- Severability. If any part, term or provision of this Agreement shall be held illegal, unenforceable or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected thereby.
- Assignment. DaySmart may assign, transfer, or otherwise dispose of its rights and obligations under this Agreement, in whole or in part, at any time without notice to Customer. Customer may not assign this Agreement (whether directly or indirectly, by operation of law, or otherwise) or transfer any rights to use the Service Technology without Customer’s prior written consent.
Exhibit A – Mobile App EULA
The terms of this Exhibit A (“EULA”) supplement the Agreement and apply only if Customer access or uses the Mobile App.
1. LICENSE. Subject to the terms and conditions of the Agreement, DaySmart grants each authorized user of Customer, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, revocable license to install and use one copy of the Mobile App in object code form only on a single personal device solely to use the Services in accordance with the terms of the Agreement. Any DaySmart software that updates, supplements or replaces the original Mobile App is governed by this Agreement unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.
2. LEGAL COMPLIANCE; EXPORT RESTRICTIONS. The Mobile App is subject to applicable United States export laws and regulations. Customer must comply with all applicable laws and regulations, including without limitation all applicable United States and international export laws and regulations, with respect to the Mobile App and related technology. Without limitation, Customer may not export, re-export or otherwise transfer the Mobile App or related technology, without a United States government license: (i) to any person or entity on any United States export control list; (ii) to any country subject to a United States sanctions; or (iii) for any prohibited end use.
3. U.S. GOVERNMENT LICENSE RIGHTS. If acquired by any agency of the United States government, such agency acknowledges that (i) the Mobile App constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (ii) such agency’s rights are limited to those specifically granted pursuant to this Agreement.
4. ACCESS TO DEVICE. The Mobile App will transmit certain data to DaySmart and its licensors and suppliers about or relating to the device in which it is installed, including information about Customer and its users access and use of the Services via the Mobile App. The information collected will be deemed User Data under the Agreement and subject to applicable terms therein.
5. ADDITIONAL TERMS APPLICABLE TO APPLE DEVICES. The following terms apply if Customer or any authorized user of Customer is installing, accessing or using the Mobile App on any device that contains Apple Inc.’s (“Apple”) iOS mobile operating system.
- Acknowledgement. Customer and DaySmart acknowledge that the Agreement is concluded solely between Customer and DaySmart, and not with Apple, and DaySmart, not Apple, is solely responsible for the Mobile App and the content thereof. Customer further acknowledges that the usage rules for the Mobile App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date Customer downloads the Mobile App, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive. Customer acknowledges and agrees that Customer has had the opportunity to review the Usage Rules.
- Scope of License. The license granted to Customer is limited to a non-transferable license to use the Mobile App on any iPhone, iPod touch or iPad that Customer or its authorized users own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
- Maintenance and Support. Customer and DaySmart acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App.
- Warranty. Customer acknowledges that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Mobile App. In the event of any failure of the Mobile App to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by Customer; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of DaySmart.
- Product Claims. Customer and DaySmart acknowledge that as between Apple and DaySmart, DaySmart, not Apple, is responsible for addressing any claims relating to the Mobile App or Customer’s possession and use of the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the Mobile App or Customer’s possession and use of the Mobile App infringe that third party’s intellectual property rights, DaySmart, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under the Agreement.
- Legal Compliance. Customer represents and warrants that (i) Customer and its authorized users are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer and its authorized users are not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address. Any questions, complaints or claims with respect to the App should be directed to: DaySmart Software Inc., 3520 Green Court Suite 250 Ann Arbor, MI 48105 or (800) 604-2040.
- Third-Party Terms of Agreement. Customer agrees to comply with any applicable third-party terms when using the Mobile App.
- Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this EULA (but not the entire Agreement), and that, upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA (but not the entire Agreement) against Customer as a third-party beneficiary thereof).