This Software as a Service Agreement (the “Agreement”) sets forth the terms and conditions which shall rule between you (the “Client”, “you”, “your”) and A&A GLOBAL CREATIONS INC, a company incorporated in the state of Illinois of the United States of America (the “Provider”, “we”, “our”) in relation of the online Web application (the “WebApp”), administered and made available to you by the service Provider, subject to the definitions covenants and determinations set herein. We strongly recommend that all Clients read this Agreement carefully. All use of the online and offline features, access, upload and download of information by means of the Platform is subject to your acceptance of this Agreement. IN CASE YOU DO NOT AGREE OR DO NOT WISH TO ACCEPT ANY OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBAPP OR ACCESS THE PLATFORM.
YOU CONSENT AND STATE TO ACCEPT AND AGREE WITH THE TERMS OF THIS AGREEMENT ONCE YOU [PRESS I ACCEPT/ I AGREE/ MARK THE BOX STATING YOU HAVE READ AND HAVE FULL KNOWLEDGE OF THE DETERMINED HEREIN] …………………………….. , AFTER OF WHICH YOU ARE BOUND BY THIS AGREEMENT. IF YOU REPRESENT AN ENTITY OR A COMPANY YOU STATE THAT YOU HAVE SUFFICIENT AUTHORITY TO ACCEPT THIS AGREEMENT IN BEHALF OF SUCH ENTITY OR COMPANY.
For your complete understanding of the terms and conditions of this Agreement, the following definitions shall apply to the entire Agreement;
PROVIDER is the A&A GLOBAL CREATIONS INC, incorporated under the laws of the state of Illinois which runs and makes available the Webapp online for the management and administration of childcare related services.
CLIENT is the individual or entity which operates and provides childcare services. It is assumed that Client is authorized and has all required licenses to operate and provide such services in the State or States where it or they operate.
WEBAPP is the online application which allows access to the services and permits the management and administration of childcare services, managed by Provider.
WEBSITE is the webpage located at http://www.10childcareapp.com/ and related URLs and subdomains.
PLATFORM is the interface for the Master User and all their created Account which grants access to role-specific parts of the Webapp.
SUBSCRIPTION FEES are the fees charged by Provider to Client for compensation of the use and access to the Services, subject to an plan opted previously by Client.
SUBSCRIPTION PLAN is one of the available plans promoted on the Website of Provider. Client may opt to the Subscription Plan which fits best for the Client’s childcare services.
TRIAL ACCOUNT is an account used to try and access the Webapp through the platform which is not charged for a period of thirty (30) days.
ACCOUNT is the user account which is not a Master User account, and is allowed to access specific parts of the Webapp, or upload or read reports and other relevant information of the daycare.
MASTER USER is the designated person of the Client which will act as main administrator, able to
create all available types of information on the Webapp. Through the MASTER USER account may also
create other accounts and register users such as the children of the childcare related services,
their parents, staff, teachers and assistants. Other options are available subject to the chosen
TEACHER is the person in charge of a classroom or other kind of learning or care environment which is able to file reports and which may communicate through the messaging system with Parents when required.
PARENTS may be the mother or the father -or both- or in some cases the guardians of a child, which may access the Webapp to seek relevant information of the childcare services and activities.
CHILDREN are the minors which attend to the Client’s childcare establishment and may be registered on the Webapp by the Client, subject to the previous authorization of their Parents.
USERS are any of the account holders, regardless of their role.
2. SERVICES AND USE
2.1 Services. Provider hereby shall make reasonable commercial and technological efforts to provide to both trial and subscribing Clients a Webapp intended for administration of institutions providing childcare related services, accessible by means of the Platform through the Website of the Provider, as defined in Section 1 of this Agreement. Subject to this Agreement and to availability, the services provided by the Webapp may include a internal messaging system, registration and scheduling of activities and reports, displaying of specific information such as meals or relevant projects, all available by means of the platform accessible through Account (the “Services”).
2.2 Use of the Services.
Subject to any applicable trial period, plan terms and the timely and accurate payment of the applicable subscription fees by Client, Provider grants Client a nonexclusive, non-assignable, worldwide limited right to access and use the Services solely for the business operations related to childcare services. In case of breach of any section, term or condition of this Agreement by Client may result in the suspension the Services.
As previously stated, an account is needed to access the platform to use the services provided by the Webapp. There are different types of Accounts;
3.1 Master Account. When applying and registering a Trial account or subscribing directly to an available plan, Client shall register a Login and Password for a Administrator User Account. From this account, subject to the choice of any of the available plans and the account status of the Client, other users may be granted access by means of the registration of an account, such as Parents, Teachers, Staff and other similar roles may be created. Client is exclusively and solely responsible of keeping the Administrator User account protected, and the password secret at all times. In the event of a suspected breach the Client must immediately change the password and notify any third parties such as the parents of such event. Provider waives all liability regarding a non-authorized access of a Master User account due to misuse, careless or irresponsible account care. PROVIDER STRONGLY RECOMMENDS USING AND ACCESSING THE MASTER USER ACCOUNT FROM A SECURE DEVICE AT ALL TIMES, TO PREVENT UNAUTHORIZED ACCESS, HACKING, CRACKING OR OTHER WRONGFUL USE OF THE ACCOUNT. PROVIDER, ITS AFFILIATES AND/OR PARTNER COMPANIES SHALL NEVER INQUIRE OR ASK FOR THE LOGIN OR PASSWORD FROM A CLIENT, EITHER ONLINE BY EMAIL OR OTHER MESSAGE, BY SMS OR OTHER MESSAGING SYSTEM OR BY REGULAR MAIL.
3.2 Regular Accounts. Client is hereby solely responsible for the creation of other accounts, subject to availability and the chosen subscription plans. Notwithstanding other specific set of terms made available on the Provider’s Website, the creating of a new account implies for uch the holders of such new accounts an acceptance of the terms of this Agreement. Client shall also recommend to the holders of such accounts to take use reasonable methods to protect their passwords to prevent a breach or wrongful use from any such account.
3.3 Trial Accounts. Trial accounts are available for a 30 day trial. Some features may from time to time be unavailable on this type of accounts. Provider does not make any warranties or representation of the functionality of Trail accounts, and they are offered on an “as is” basis.
3.4 Parent Account and Access. Parents are granted access to specific information of their child or children through the Webapp, made possible by Client by means of the Master User account. Client is solely responsible and liable for the authorization of the Parents to both, usage and deployment of the Webapp with their childcare services, and obtaining consent of Parents for the storage and registration of their child or children on the Webapp.
When the Client or any User accesses the Services, they must comply with the following:
4.1 Misrepresentation. It is strictly forbidden to attempt or to aid in the misrepresentation or the impersonation of an individual or entity different to themselves or who they deem to represent, including without limitation, the Provider.
4.2 Fair Use. When making use of the Services, users must make sure to identify the sender of inside messages through the App, and refrain from any form of harassment, violence or to discriminate in any way. Provider is in no way whatsoever liable for the messages sent between Users, and does not have control over them.
4.3 Prohibition. Users are furthermore prohibited to make wrong use, misuse, or abuse the services; attempt to undermine, circumvent or breach the security or the integrity of the Webapp or its algorithms and systems, or aid to a similar goal; make unauthorized copies of or make clones of the Website or the Webapp; attempt to access parts which they are not cleared or authorized to access or view; and breach any third party right.
5. SUBSCRIPTION FEES AND TAXES
Client is to pay the Provider a fee for the chosen Subscription plan (the “Subscription Fee”). Each plan has a subscription period of one (1) month. Client may choose one of the payment method available on the Website or Webapp; from time to time these available methods may vary, or new methods may be added. The first payment shall be made on the effective date of this Agreement or, in case of a Trial Account, whenever the period of such account expires. Thereafter the preferred method of payment by Client is charged on the first day of the new subscription period. Client hereby consents to such monthly automatic payment, provided Client does not discontinue their subscription, which Client is allowed to do at any given time. No reimbursement shall be made after a payment is processed. In case that the payment method is rejected at any given moment, Provider may suspend the associated account and impede entrance to the platform until the payment proceeds or is otherwise solved. All applicable taxes are sole responsibility of Client, unless determined differently in applicable law.
6. TERM, DEFAULT AND TERMINATION
6.1 Term. The Term of this Agreement commences on the effective date, at the time of registration of Client, entering of their data by means of their form, and choosing of a payment method. As mentioned in Section 5 above, a monthly/yearly subscription period applies from thereon. Unless such period is interrupted by the cancellation of such subscription by Client, the term shall be construed as renewed each month/year.
6.2 Default. Whenever Client fails to make a scheduled payment or the payment method of rejects the charge or otherwise the payment is not completed or not possible to process, the Client shall be considered in default, and as a result the Client’s associated Master User Account, and all accounts created by it, will be suspended. If Client remains in Default for a period equal or over ninety (90) days straight, Provider may close such account. After account closure the information and date uploaded to the Webapp shall remain available in case Client renews a Subscription. After this period, Provider is full authorized to permanently erase the account and all its information, and Client’s sole relief shall be the right to open a different Master User account and opt for a new subscription.
6.3 Termination. Provider may terminate this agreement at any given time in case of a suspected breach of this Agreement by Client, or when the account is permanently closed as determined in Subsection 6.2 above. Client may terminate this Agreement at any time during the term of this Agreement.
7. PERSONAL AND PRIVATE INFORMATION
The Provider shall at all times use reasonable technical and commercial efforts to ensure the services availability, subject to the Service Level Agreement available at the end of this SaaS Agreement.
9. INTELLECTUAL PROPERTY
Provider shall remain at all times the sole proprietor or licensee of the intellectual property and
material prone of copyright or other type of proprietary right of the Website and the Webapp,
including without limitation, all displayed images, audio, videos, trademarks, brands, content
texts. The grant to use which Provider grants to Client of the Services shall in no way imply any
transfer of rights or license to use for purposes different of those determined herein.
Notwithstanding the aforementioned Client shall remain the proprietor or licensee of all data and information which is entered into the Webapp by means of the platform.
10. NO WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY ANY RELEVANT FUTURE OR PRESENT LAW, THE WEBAPP, THE PLATFORM, AVAILABLE DOCUMENTATION, AND SERVICES ARE PROVIDED SOLELY ON AN “AS IS,” AND “AS AVAILABLE BASIS, WITHOUT WARRANTY OF ANY KIND, AND THE PROVIDER HEREBY DISCLAIMS AND MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, SUITABILITY, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE WEBAPP, THE PLATFORM, AVAILABLE DOCUMENTATION, AND SERVICES, EITHER WHOLE OR TORT OR PART. ADDITIONALLY, PROVIDER DOES NOT WARRANT THAT THE WEBAPP, THE PLATFORM, AVAILABLE DOCUMENTATION, AND SERVICES ARE IN ANY WAY ERROR-FREE OR THAT THEY WILL BE UNINTERRUPTED. IN CASE ANY SPECIFIC STATE, PROVINCE OR REGION DO NOT ALLOW ANY OF THESE DISCLAIMERS OR THE WAIVING OF WARRANTIES, THE AFOREMENTIONED IN THIS SECTION MAY NOT APPLY TO YOU, THE CLIENT.
11. LIMITATION OF LIABILITY
PROVIDER SHALL NOT BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THIS WEBSITE OR THE PERFORMANCE OF THE SERVICES WHICH ARE AVAILABLE ON THE WEBSITE OR THE CONDUCT OF OTHER WEBSITE USERS (WHETHER ONLINE OR OFFLINE) OR ANY CONTENT THEREIN, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE WEBSITE. YOUR ONLY REMEDY AGAINST PROVIDER FOR USE OF THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE CUMULATIVE LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CLIENT IN ITS ENTIRETY. THIS LIMITATION OF LIABILITY SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
12. GOVERNING LAW
This Agreement is governed by the laws, acts and regulations of the United States of America. The courts of the State of Illinois shall have jurisdiction and venue to interpret and make determinations related to this Agreement.
Client hereby agrees to keep Provider indemnified and hold Provider harmless of and against all claims of loss and/or damage in case of wrongful use of the Webapp, the Platform, available documentation, and Services, either by client or by Users related or created by the Master User, or of any legal disputes. The Provider waives all liability of non-authorized use of the Webapp or registration of Children without the explicit consent of their Parents or Guardians.
If any provision of this Agreement is, held or interpreted to be invalid or in other way unenforceable, the other provisions of this Agreement will remain enforceable for all purposes which may assist the parties.
15. NO WAIVER
Any delay or failure by either party to this Agreement to execute or exercise any right or claim related to the terms determined herein, shall not be construed as a waiver of such right.
The Parties hereto agree that Client may not assign any of its rights or obligations determined in this agreement to any third parties, without express and explicit written consent of Provider. Provider may at any time assign this Agreement, provided that the conditions and terms of this Agreement survive such assignment and are kept identical or improved by the assignee, and the fees are kept unchanged for a period of no less than six (6) months.
It is determined that all rights and remedies of Provider under this Agreement are cumulative. Client acknowledges that the Services, the Webapp and/or the Website may contain valuable trade secrets and proprietary information of Company, and that any breach of this agreement regarding intellectual property and/or copyright may constitute immediate and irreparable harm to Provider, its affiliates, licensors, partners, shareholders and agents, and that these would not be relieved by a simple monetary damage recovery. If such breach occurs, Provider shall be entitled to seek injunctive relief without any other requirements or requisites. In case that any legal action is promoted in relation to this agreement, the prevailing party may seek reasonable attorney fees, legal costs and other expenses, in addition to any other relief which Provider may seek.
18. FORCE MAJEURE
Any delay in the performance of any duties or obligations of either party, excepting the payment of a Subscription fee, shall not be considered a breach of this SaaS Agreement, provided that such delay is caused by shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
19. REVISIONS TO THIS AGREEMENT
Provider reserves the right to revise the Terms of this Agreement, and may update this section of the Website and this Agreement. A notice shall be given to Client previous to such change to their registered E-mail address. Client is to accept the amendments, revisions or changes to this Agreement, or may disagree and not accept the terms; in this case, the sole remedy of Client shall be the cancellation of any active subscription plan. The continued use, access and later payment of the services shall be deemed as acceptance of Client of the announced amendments, revisions or changes to this Agreement.
20. ENTIRE AGREEMENT
This Agreement shall be construed as the final and entire agreement between the parties respecting the subject matters determined herein and supersedes all prior discussions, either written or oral, respecting the terms and conditions set in this Agreement. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective agreed and accepted by both parties.
All the definitions and terms and conditions of the Software as a Services Agreement (the SaaS Agreement”) equally applies to this Service Level Agreement (the “SLA”).
A. UPTIME AND MAINTENANCE. Provider shall make reasonable technical and commercial efforts to keep the Website and Webapp online and available for use and access to the Services for 95% on a specific month, not considering maintenance hours, which are programmed to occur during no- regular or usual Childcare service hours. They are normally done in 2 hours. In case of scheduled maintenance of the Webapp a notice shall be sent to Client at least three days in advance. The aforementioned may not apply in Force Majeure events or in case of malicious attacks on the Webapp, the Website and/or the Servers or databases where they are hosted.
B. CUSTOMER SUPPORT. Provider shall attend to any problems and claims related to the Webapp, the
Website or the Platform within a three (3) working days’ period. E-Mails or contact forms may be
sent to provider at any time, 24/7.