If you signed up prior to 11/01/2020, click here

SmartcareOS, LLC

TERMS OF SERVICE

FOR CHILD CARE CENTERS 

Last Updated: December 2, 2020

Please read these Terms of Service (these “Terms”) carefully because they govern your use of SmartcareOS, LLC’s (“Smartcare,” “us” or “we”)  Services defined in Section 4 (“Services”).

1. AGREEMENT TO TERMS. By clicking “Sign Up” or by using the Services, you agree to these Terms, including the Agreement to Arbitrate set forth in Section 15.  This agreement is between you (either an individual or a company or other legal entity providing child care services) (“Center”), and Smartcare. You represent and warrant that you have the authority to bind the Center to these Terms, and, in such event, “you” and “your” will refer to that Center.

2. PRIVACY POLICY. Before using the Services, please carefully review our Privacy Policy at https://smartcare.com/privacy-policy/, which is expressly incorporated into these Terms. All information provided to us as a result of your use of the Services, including personal information, will be handled in accordance with our Privacy Policy. If you are a Center based inside the European Union, any personal information provided to us as a result of your use of the Services will be governed by and subject to our EU Data Protection Agreement, which will be provided to you separately and which, in relation to Centers based in the European Union only, is expressly incorporated into these Terms.

3. CHANGES TO TERMS OR SERVICE. We may modify the Terms at any time, in our sole discretion. If we do so, we will provide notice to you of modifications, either via the Site, the App or by some other method of communication. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have notified you of the modified Terms, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all, or any part of the Services, at any time and without notice, at our sole discretion.

4. SERVICES

4.1 Implementation. To implement the Services for you, we will provide access to guides, training videos and other materials to help you setup and learn to use the Service.  We may, at our discretion, provide a dedicated center service manager for up to six (6) weeks of training, who will communicate with you remotely via phone, web conference, or other means, but who will not visit your premises, and we will provide access to Smartcare’s online support feature.  If you have paid for an on-site implementation, we will provide up to four (4) hours of in-person implementation help at your premises, a dedicated center service manager for six (6) weeks of training, and access to Smartcare’s online support feature.  If we determine that your implementation is complete upon successfully entering the requisite information into the Services, we may, at our discretion, provide training to use the Services to (i) you; (ii) your employees who are authorized by you to use the Services on your behalf (“Authorized Users”); and (iii) your child care customers (“Parents”). We may also, at our discretion, provide assistance to you to ensure that any Service Device(s) provided to you are properly functioning. Upon determining that an implementation is complete, we will provide Authorized Users of all levels of employment access to support via email and through support functions in the App, while Authorized Users at the director level will have access to the customer service team.

4.2 Center Management.  The Services include center management services described in (i) the website located at htttps://smartcare.com (the “Site”); (ii) the mobile device application (“App”); and (iii) additional child care management-related services (including invoicing and payment services) that we provide accessible via our Site and our App, as well as through your use of any device provided to you by Smartcare (“Service Device”).

4.3 Classroom Management.  The Services include center management services described in (i) the website located at https://preschool2me.com (the “Site”); the “Preschool2Me” mobile device applications (“App”); and (iii) classroom management-related services (including lesson plans and assessments) that we provide accessible via our Site and our App, as well as through your use of any device provided to you by Smartcare (“Service Device”).

4.4 Kid Kiosk.  The Services include center management services described in (i) website located at https://kidkiosk.com (the “Site”); (ii) the “KidKiosk” mobile device application (“App”); and (iii) attendance management-related services that we provide accessible via our Site and our App, as well as through your use of any device provided to you by Smartcare (“Service Device”).

4.5 Use. Subject to these Terms, during the Term (as defined below) you may access and use the Services for your internal business purposes and such access and use is expressly limited to your Authorized Users.  The Services may only be accessed and used by Authorized Users who have agreed to abide by these Terms to access and use the Services solely for the purposes of performing their job functions for you. You are responsible for the use of the Services by your Authorized Users, and their compliance with these Terms. You will only allow the use of the App on compatible devices that are supported by Smartcare. You will provide Smartcare’s service team (including your dedicated center service manager, if applicable) with reasonable assistance required to implement the Services for you and to provide training.

4.6 Obligations. You agree not to: (i) resell, sublicense (except to Authorized Users, and Parents using a sign-in kiosk for the Services), or otherwise make the Services available to any third party; (ii) deactivate, impair, or circumvent any security or authentication measures of the Services; or (iii) modify, alter, decompile or reverse engineer any part of the Services.  You agree to comply with all laws and regulations applicable to your business and your use of the Services, including laws and regulations relating to child care, privacy and third-party proprietary rights.

4.7 Subcontractors.  Smartcare may subcontract any of the Services to a third party at its sole discretion.  Payments made through the Site, the App, or a Service Device may be processed by Smartcare’s third-party payment processor, Vanco Payment Solutions, LLC (“Vanco”).  Please visit Vanco’s website (https://www.vancopayments.com/) to familiarize yourself with its terms and conditions and its privacy policy. 

5. YOUR CONTENT

5.1 Your Responsibility. You and Authorized Users may upload data, information, images and other materials to use with the Services (“User Generated Content” or “UGC”). Under no circumstances will we be liable in any way for any UGC. This means that you, not Smartcare, are entirely responsible for all UGC that you post and that you can be held personally liable for comments that are defamatory, obscene, or libelous, or that violate these Terms, an obligation of confidentiality, or the rights of others. If any part of the UGC you post is not your original work, it is your responsibility to obtain any necessary permission(s) to post it.  Because we do not control the UGC posted on or through the Services, we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that UGC. You also agree and understand that by accessing the Services, you may encounter UGC that you may consider to be objectionable. We have no responsibility for any UGC, including without limitation any errors or omissions therein. We are not liable for any loss or damage of any kind you may claim was incurred as a result of the use of any UGC posted, emailed, transmitted or otherwise made available on or through the Services. The UGC posted on or through the Services expresses the personal opinions of the individuals who posted it, and does not necessarily reflect the views of Smartcare, or any person or entity associated with Smartcare.

5.2 Use of UGC. You own the UGC and the copyright in any UGC you post. We do not claim any copyrights in UGC.  However, by using the Services you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty–free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain, repurpose, and commercialize any UGC you post in any and all media or form of communication, whether now existing, or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same (consistent with the App’s settings).  This means, for example, that if you share a photo using the Services, you give us permission to store, copy, and share it with others (and you grant our sublicensees the same rights, including Parents), all subject to the preferences you indicate in the App settings, and our obligations set forth in our Privacy Policy. For this reason, we ask that you not post any UGC that you do not wish to license to us, including any photographs, videos, confidential information, or product ideas. We may access and use the UGC you post, as necessary, to provide the Services to you and to identify or resolve technical problems with the Services.

5.3 Your Deletion of UGC. You may remove your UGC by canceling your account or by contacting us at the information below and asking us to remove it. However, in certain instances, some of your UGC (such as posts or comments you make) may not be completely removed and copies of your UGC may continue to exist on the Services, including as granted to our sublicensees. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your UGC.

5.4 Disclosure/and or Removal of UGC.  Smartcare has certain rights. We may share the UGC you post with our third-party service providers that help us to administer and provide the Services.  Additionally, we have the right (but do not assume the obligation) to:

• Monitor all UGC;
• Require that you avoid certain subjects;
• Remove or block any UGC at any time, without notice, at our sole and absolute discretion;
• Disclose any UGC and the identity of the user who posted it, in response to a subpoena, or whenever we believe that disclosure is appropriate to comply with the law or a court order, to prevent or investigate a possible crime or other violation of law, to protect the rights of Smartcare or others, or to enforce these Terms; and
• Terminate your access to and use of the Services, or to modify, edit or block your transmissions to the Services in our sole discretion.

You agree that our exercise of such discretion shall not render us the owner of any UGC you post, and that you will retain ownership thereof, as described above.

5.5 Restrictions on UGC.  It is a condition of these Terms that you do not:

• Upload, post, transmit or otherwise make available:
• Any UGC that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
• Any UGC that constitutes or encourages activity that is illegal under criminal or civil law;
• Any UGC that is in violation of any applicable privacy laws or your Center’s privacy policy;
• Any UGC that is false, misleading, or fraudulent;
• Any UGC that you do not have a right to make available under any law, or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• Any UGC that violates or infringes upon the rights of others, including any UGC which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
• Any UGC that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least 18 years old and you have first obtained his/her express permission or (ii) that person is under 18 years old, but you are his/her parent or legal guardian, or you have obtained express permission from that person’s parent or legal guardian;
• Any request for, or solicitation of, any personal or private information from any individual;
• Any request for, or solicitation of, money, goods, or services for private gain;
• Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
• Any UGC that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;
• Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
• Violate any local, state, national or international law, rule or regulation.

You represent and warrant that (i) you have, and will continue to have, the legal right and authority to access, use and disclose to Smartcare the UGC you post; and (ii) Smartcare’s use of the UGC in accordance with these Terms will not violate any applicable laws or regulations, or cause a breach of any agreement or obligation between you and any third party.

5.6 Intellectual Property Limitation of Liability.  Smartcare respects the intellectual property of others, and we ask visitors to the Site to do the same.  If you believe that your work has been used in a way that constitutes copyright infringement, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to Smartcare’s designated Copyright Agent:

 

1. Identification of the copyrighted work(s) that you claim has been infringed;
2. Identification of where the material that you claim to be infringing is located on the Site and/or the App;
3. A statement that you have a good faith belief that use of the disputed material is not authorized by the copyright owner, its agent, or the law, including the law of copyright fair use;
4. A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner of an exclusive copyright that is allegedly infringed or are authorized to act on the copyright owner’s behalf;
5. Your address, telephone number, and e-mail address; and
6. Your physical or electronic signature.

Smartcare’s designated agent for notification of claims of copyright infringement on this Site and/or the App can be reached as follows:

 

Address:   Designated Agent for Intellectual Property
                  James Armijo

                  SmartcareOS, LLC

                  4175 Cameron Street, Suite A2
                  Las Vegas, NV 89103
                  Telephone:  1-844-762-7837
                  E-mail:          copyright@smartcare.com 

 

Similarly, if you believe that any of your trademarks or service marks have been infringed, or if you believe that your image has been used without your consent, please notify Smartcare’s designated agent.

6. DATA

6.1 Generally. You acknowledge that in connection with our provision of the Services, we will collect and process on your behalf personal data about (a) your Center’s Authorized Users (“Center Data”); (b) the Parents using the Services on the basis of their children’s attendance at the Center, including the Parents’ names, email, phone numbers and any other information that Parents disclose to you or us via the Services relating to the day care or child care services you provide (“Parent Data”), and (c) the children of Parents you choose to include in your use of the Services, including their names, birthdates and other biometric information (“Child Data”). Together, the Center Data, Parent Data and Child Data are referred to as “Data.” With respect to such collection and processing of Data, you are, and will be deemed to be, responsible for that collection and processing and Smartcare is, and will be deemed to be, a subcontracting party, acting on your behalf at all times as a technology services provider.  You are solely responsible for (i) obtaining the requisite consent from your Authorized Employees and Parents; (ii) responding to Parents’ requests for access to their Data; and (iii) the Center’s modification or updates to the Data.

6.2 You Must Download Your Data. You may access and download your UGC and certain Data (excluding credit card and bank account information) via the Services. It is your sole responsibility to perform regular downloads of your UGC and Data. We will take reasonable precautions to protect the security of your UGC and Data; however, because no method of transmitting information over the Internet or storing information is completely secure, we cannot guarantee the security of any information. Smartcare will not be responsible for any loss, destruction or corruption of your UGC or Data. To backup your Data, we recommend downloading the following reports through the Services, at a minimum: Account Information Sheet, AR Aging Grouped by 30 Days, Balance Summary, Employee Information Sheet, Emergency Contacts, Authorized Pickup Person and Leads Custom Fields Report. The recommended frequency of downloading these reports is, at a minimum, every thirty (30) days, but more frequent downloads are strongly encouraged.

6.3 Analytics Data. You acknowledge and agree that Smartcare may collect anonymous data with respect to the use and performance of the Services, and also analyze your UGC and Data to create aggregate data that does not identify you or any individual; and that Smartcare will be the owner of such usage data and aggregate data.

7. REFERRALS TO THIRD PARTY SERVICES.Smartcare is integrated with, but not affiliated with, other service providers that provide solutions complementary to our own. We may, at our discretion, send basic information about you (name of Center, Center’s main contact and contact information, Center’s website) to our integrated service providers to see if there is an opportunity for integration of our respective services for you

8. FEES; PAYMENT; TAXES

8.1 Technology Fees.  As part of the Services Smartcare provides to you, Smartcare may transmit your invoices for child care tuition (“Tuition”) and any other fees the Center charges to Parents on your behalf. In consideration for the Services, we charge you a technology fee (“Technology Fee”).  The Technology Fee is payable monthly in advance, and per your instructions, it can be assessed on either a “per child” basis (an amount multiplied by the number of children a Parent has registered with the App) or a “flat fee” basis. You also have the option to have your Technology Fee (i) identified separately on each Parent invoice, or (ii) incorporated into your Tuition. Under either approach, you agree to allow Smartcare to withhold all applicable Technology Fees due from you to Smartcare in accordance with this Section 8. In the event there are insufficient funds for payment of the Technology Fees, you will be invoiced directly for any remaining Technology Fees due, and failure to pay Technology Fees within fifteen (15) days of being notified that Technology Fees are due will be considered a breach of these Terms.

8.2 Payment Fees. Payments for the Technology Fees, Tuition, and any other fees the Center charges Parents may be made via credit card or automated clearing house (ACH) transactions. We may charge you (i) a credit card processing fee as specified in your pricing proposal on American Express, Discover, Visa, and Mastercard accounts, or (ii) a fee per ACH transaction as specified in your pricing proposal. In addition, for any failed ACH payments attempted, we may charge you a $30.00 processing fee within approximately five (5) business days after any failed ACH payment (“Payment Fee”). We will make no more than three (3) failed attempts on a bank account before requiring a different method of payment from you. In addition, for any failed ACH payments from a Parent for Tuition, the Technology Fee, and/or any other fees you charge to the Parent, we will attempt to charge $30.00 to the applicable Parent within approximately five (5) business days after the ACH payment had failed. We will make no more than three (3) failed attempts on a bank account before requiring a different method of payment from the Parent. (These terms for credit card processing fees and attempts may be superseded by the terms of any third party that processes payments on behalf of Smartcare.)

8.3 Changes to Technology and Payment Fees. We reserve the right to modify the Technology Fee or Payment Fee at our discretion by providing at least thirty (30) days prior notice to you. Any changes to the Technology Fee or Payment Fee will not apply to your Initial Subscription Term (as defined below) but will take effect upon renewal or at the start of the calendar month for which the change is effective after your Initial Subscription Term.  It is your responsibility to notify the Parents of any change to the Technology Fee or Payment Fee if such notification is required under applicable law.

8.4 Taxes. If Smartcare has the legal obligation to pay or collect taxes on any Tuition, Technology Fee, or any other fee that the Center charges Parents for which you are responsible, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Smartcare understands it is solely responsible for all taxes based solely on Smartcare’s income.

8.5 Additional Devices. If, at your request or at our sole discretion, we provide you with additional Service Devices, you will be required to pay to us a one-time fee and/or agree to an incremental early termination fee.  We will provide pricing to you at the time the request is made.

9. TERM & TERMINATION

9.1 Initial Subscription Term for Center Management Services. Subject to Section 9.4, the initial subscription term for Services defined in Sections 4.1 and 4.2 will commence on the date of initial invoice provided by Smartcare and will continue for one (1) year (or such other period as may be agreed in writing between Smartcare and you).

9.2 Additional Services Term.  If you elect to add Services defined in Section 4.3 and/or 4.4, the Additional Services Term will commence upon signing an order form for the additional Services and will renew on the same day of the month for every calendar month thereafter.