Sitter Pro Terms of Service
Last Updated: June 10, 2019
Thank you for choosing Sitter Pro for your business. Sitter Pro is provided by UrbanSitter, Inc., a Delaware corporation (“UrbanSitter,” “we,” “us” or “our”). When you use the Services (defined below), you’re agreeing to these Terms of Service (this “Agreement”), so please read this Agreement carefully as it contains important information regarding your legal rights and obligations. Certain capitalized words below are defined in Section 14 (Definitions).
Sitter Pro is an online business management software service designed specifically for businesses in the care industry (the “Software Service”). You can access the Software Service via the client login page on our Website.
This Agreement applies to any use of and access to the Software Service or Website (collectively, “Services”) by you and/or your Affiliates. By accessing or using the Services (or permitting an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, do not access or use any of the Services.
This Agreement is effective on the earlier of (a) the date you accept this Agreement by clicking an “I Accept” button or otherwise indicate that you accept this Agreement through the Order Form, or (b) the date you (or an Affiliate) first access or use the Services (such date, the “Effective Date”).
- Agreement. This Agreement is a binding legal agreement between you and UrbanSitter. If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and UrbanSitter are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
- Application. This Agreement applies to any use of the Services, including, without limitation, in connection with a paid subscription or a free trial. For clarity, this Agreement does not apply to the use of the Sitter Pro App by End Users. The Sitter Pro App has a separate agreement for users of the Sitter Pro App (the “Consumer Agreement”), which is accessible through the Sitter Pro App.
- Changes to this Agreement.We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of this Agreement to our Website, and we agree the changes will not be retroactive. If we make any material changes to this Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes to this Agreement, it means you have accepted such changes. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing email@example.com. You will not be entitled to any refund if you terminate your account; provided, however, if you have subscribed for an annual plan, your account will only be charged through the month during which termination occurred provided that you terminate your account within thirty (30) days after we provide notice of the change. It is your obligation to ensure that you read, understand and agree to the latest version of this Agreement that’s posted on our Website. The legend at the top of this Agreement indicates when it was last changed.
- Access and Service Levels. We will make the Software Services to which you have subscribed available to you via the Internet, subject to the terms and conditions of this Agreement. During the Subscription Term (defined in Section 8.1), the Software Services will meet the service levels specified in the Service Level Agreement (“SLA”).
- Changes to Services. Notwithstanding Section 2.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (a) during planned downtime as provided in the SLA, (b) in connection with a Force Majeure event (as described in Section 12.7), or (c) if we believe any malicious software is being used in connection with your account. We reserve the right to change, modify, and otherwise convert the software, hardware and/or technology used to provide the Services at any time without notice, provided, however, that the basic functionality and quality of the Services will not be materially affected. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
- Support Services. During the Subscription Term of each Software Service to which you have subscribed, UrbanSitter will provide support for such Software Service in accordance with the Sitter Pro Support Policy (“Support Policy“).
- Marketing Services. When you subscribe to the Software Service, your business will be provided the opportunity to be listed on the Sitter Pro online marketing platform (“Marketing Services”), which allows consumers to locate Sitter Pro subscribers and evaluate, review and book their services, directly through the Sitter Pro App and, if applicable, through our partner applications. From time to time, we may offer Sitter Pro subscribers the opportunity to participate in promotional programs (“Sitter Pro Promote”), which are designed to promote their businesses and attract customers through the Marketing Services. To enroll in Sitter Pro Promote, you must review and agree to the applicable Sitter Pro Promote terms and conditions accessible at https://sitter.app/sitter-pro-promote-terms-of-service/ (or such other URL as we may specify) (“Sitter Pro Promote Terms”). We reserve the right to charge fees for Sitter Pro Promote in accordance with the Sitter Pro Promote Terms. If you enroll in Sitter Pro Promote, you agree to pay all applicable fees for Sitter Pro Promote in accordance with Section 4.2 of this Agreement. In the event of any conflict between this Agreement and the Sitter Pro Promote Terms, the Sitter Pro Promote Terms will apply.
- Free, Trial and Beta Services. We may, in our sole discretion, offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) we may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. UrbanSitter will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta services.
- Professional Services Terms. Additional terms specific to the procurement of Professional Services apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
- Liability for Affiliates. Only you, your Affiliates and your and their respective authorized representatives may access and use the Services. You are responsible for all activity occurring under or relating to your account, including, but not limited to, activity of your staff, employees, consultants, advisors, and/or independent contractors. You will ensure that your Affiliates comply with all of the provisions of this Agreement, including any acceptable use policies that we may provide or make available, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of the Services (or similar phrase) is deemed to include access or use, as appropriate, by your Affiliates, and any act or omission of an Affiliate that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.
- Data; Unauthorized Access; Maintaining Networks. You will: (i) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those laws related to data privacy and transmission of personal data; (ii) prevent unauthorized access to, or use of, the Services, and notify us promptly of any unauthorized access or use or suspected unauthorized access or use; and (iii) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services. We may monitor your and your Affiliates’ use of the Services, but shall have no obligation to do so. We may audit any material submitted or posted on or through the Services.
- Restrictions on Use. You will not, and will not allow your Affiliates or other third parties to: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts, agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) provide, or make available, any links, hypertext or otherwise (other than a “bookmark” from an Internet browser) to the Services or frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; (ix) use the Services, or transmit any information or material through the Services, for any unlawful purpose or in a way that violates, infringes or misappropriates the rights of any third party (including, but not limited to, property rights or privacy rights) or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services.
- Cardholder Data. You are solely responsible for any liability resulting from your or any or your Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
- User Names and Passwords. We may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of UrbanSitter. You are responsible for ensuring the security and confidentiality of all user names and passwords. You, and not UrbanSitter, are responsible for any use or misuse of user names or passwords associated with your account.
- Laws and Regulations; Policies. You agree to comply with all applicable laws, rules and regulations relating to (i) your use of the Services and (ii) your business, including but not limited to, licensing requirements, employment laws, such as wage-and-hour laws and employee classification, and federal immigration laws. You agree to comply with all UrbanSitter standard published policies then in effect relating to the Services and all written documentation regarding the Services, including, but not limited to, implementation guidelines, provided by us to you.
- Insurance. You will maintain in full force and effect: (a) broad form commercial general liability insurance, including without limitation, personal injury and contractual liability coverage, and product and completed operations coverage, with limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate; and (b) worker’s compensation and employer’s liability insurance, with limits of at least $1,000,000. All insurance shall be written through companies having an A.M. Best’s rating of at least A, VII or otherwise be acceptable to UrbanSitter. All insurance policies required pursuant to this section will stipulate that they are primary insurance policies and that no insurance policy or program of UrbanSitter will be called upon to contribute. You will provide Certificates of Insurance evidencing such coverages upon UrbanSitter’s request. You will provide UrbanSitter thirty (30) days’ written notice in the event any of the policies required hereunder are reduced or cancelled. Should you at any time fail to maintain the required insurance, such failure shall be considered a breach of this Agreement entitling UrbanSitter to terminate for cause.
- Suitability of Caregivers. You are solely responsible for the determination of the suitability of a caregiver to perform the care services requested by an End User. You affirm that you have conducted, at a minimum, one interview and two personal and employer reference checks on each of your caregivers who may provide services to End Users. In addition, each of your caregivers who may provide services to End Users (i) has never been convicted of, and is not currently pending trial for, any felony or misdemeanor, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, (ii) has not been and is not currently required to register as a sex offender with any government entity, (iii) is an individual at least 18 years of age and at least the legal age of majority in the state in which they reside, and (iv) has the legal right to work in the United States.
Fees and Payment.
- Software Services Fees. Fees for the subscribed Software Services (“Subscription Fees”) and Administrative Processing Fees on services paid for utilizing Stripe Payment Processing are set forth on our website at https://sitter.app/sitter-pro-pricing/ (or such other URL as we may specify). As further set forth in Section 4.4, such fees may be updated by us from time to time.
- Payment Terms. You agree to pay UrbanSitter the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. Except as provided in Section 1.4, all payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide us with valid and updated credit card information or another form of payment acceptable to us. If you provide credit card information, you represent that you are authorized to use the credit card and you authorize UrbanSitter to charge the credit card for all payments hereunder. By submitting payment information, you authorize UrbanSitter to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by UrbanSitter for purposes of acknowledging or completing any payment.
- Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by us within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and we will be entitled to either suspend the Services or terminate this Agreement in accordance with Section 8.2.
- Changes in Fees. From time to time, upon notice to you, we may increase any fees specified in an Order Form, provided the increase will not become effective until the expiration of the current Subscription Term. We may increase any fees that are not specified in an Order Form at any time, with or without notice to you. We may also convert any free, trial or beta Service into a Service subject to a Subscription Fee upon notice to you, and your rights to such Service will be suspended if you do not pay the Subscription Fee.
- Payment Errors. If you believe a payment has been processed in error, you must provide written notice to us within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by us within such thirty (30) day period, the payment will be deemed final.
- Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If we are legally required to pay or collect any Taxes on your behalf, we will invoice you and you will pay the invoiced amount. For clarity, we will be solely responsible for taxes assessed on UrbanSitter based on its income.
Intellectual Property Rights.
- Sitter Pro Intellectual Property. UrbanSitter or its affiliates own all right, title and interest in and to the Services, the Sitter Pro Data (defined in Section 6.2) and Aggregated Data, including, without limitation, all intellectual property rights therein (other than with respect to Your Data). Subject to the limited rights expressly granted to you under this Agreement, UrbanSitter and its affiliates reserve all rights, title and interest in and to the Services, the Sitter Pro Data and Aggregated Data, including, without limitation, all related intellectual property rights. UrbanSitter’s and its affiliates’ company names, logos, product and service names, trademarks or services marks (the “Marks”) are owned by UrbanSitter or its affiliates. You agree not to display or use any Marks in any manner without UrbanSitter’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
- License Grant to You. Subject to the terms and conditions of this Agreement, UrbanSitter hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access via the Internet and use the Services set forth in an Order Form during the Subscription Term and solely for your internal business purposes. You will not and will not allow Affiliates or any third party to: (i) modify, copy or create any derivative works based on the Services; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates as permitted herein; (iii) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by UrbanSitter in the provision of the Services; (iv) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (v) copy any features, functions, integrations, interfaces or graphics of the Services; or (vi) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
- License Grant to UrbanSitter. You hereby grant to UrbanSitter and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, fully paid up, and royalty-free license to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (i) providing the Services, (ii) for marketing and promotional purposes in connection with UrbanSitter’s business, and (iii) for Marketing Services. We agree that any use by us of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to us or our affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
- Feedback. UrbanSitter has not agreed, and does not agree, to treat as confidential any suggestion or idea for improving or otherwise modifying any of UrbanSitter’s products or services that you or your Affiliates provide to UrbanSitter (“Feedback”). Nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict our right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, and we may do each of the foregoing without compensation to or credit to you or your Affiliates.
Data Ownership and Use.
- Your Data. As between you and UrbanSitter, you own all right, title and interest in Your Data. You hereby grant to UrbanSitter a nonexclusive, worldwide, transferable, sublicensable, perpetual, irrevocable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing the Services, for other development, diagnostic and corrective purposes in connection with the Services, and for other business purposes. You represent and warrant to UrbanSitter that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
- Sitter Pro Data. Except as set forth in the Consumer Agreement, all right, title and interest in any data or information collected by us independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information we obtain about End Users through the Sitter Pro App (whether the same as Your Data or otherwise), will be solely owned by UrbanSitter (collectively, “Sitter Pro Data”).
- Aggregated Data. You authorize UrbanSitter to aggregate or anonymize Your Data or other data in connection with this Agreement, and UrbanSitter will own all Aggregated Data. You agree that nothing in this Agreement will prohibit UrbanSitter or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information.
- Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
- Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that we have no obligation whatsoever to resolve or intervene in such disputes.
A Party will not disclose or use any Confidential Information of the other Party except: (i) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (ii) with the other Party’s prior written permission; or (iii) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict UrbanSitter’s use of Sitter Pro Data or Aggregated Data.
Term, Termination and Suspension.
- Annual Commitment. If you subscribe to an annual plan, as specified in an Order Form, the term of this Agreement (the “Subscription Term”) will be for one (1) year. The Subscription Term commences on the Effective Date and automatically renews for additional one (1) year periods until either Party terminates in accordance with this Agreement. Either Party may terminate this Agreement and/or any subscription, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the then current Subscription Term. Unless otherwise specified in an Order Form, Subscription Fees during any renewal term will be the current pricing in effect at the time such renewal term commences.
- Monthly Commitment. If you subscribe to a monthly plan, as specified in an Order Form, the Subscription Term will be month-to-month. The Subscription Term commences on the Effective Date and will automatically renew on a monthly basis until either Party terminates in accordance with this Agreement. Either Party may terminate this Agreement and/or any subscription, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the then current Subscription Term. Unless otherwise specified in an Order Form, Subscription Fees during any renewal term will be the current pricing in effect at the time such renewal term commences.
- Termination for Cause. We may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe UrbanSitter, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to UrbanSitter for the period prior to the effective date of termination. You may terminate this Agreement for cause as set forth in the SLA.
- Bankruptcy. Either Party may terminate this Agreement immediately upon written notice if the other Party commences, or has commenced against it, bankruptcy proceedings in any jurisdiction and such proceedings are not dismissed within thirty (30) days, makes a general assignment for the benefit of its creditors, becomes insolvent, has a receiver appointed for it or its business, ceases operations or is liquidated or dissolved.
- Rights on Termination or Expiration. Upon termination or expiration of this Agreement (i) all Order Forms will automatically terminate and be of no force or effect; (ii) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (iii) except as specified in the following paragraph, we will have no obligation to maintain your account or to retain or forward any data to you or any third party, except as required by applicable law.
For a period of no greater than thirty (30) days following a notice of termination, we will make Your Data available to you through our standard web services. After such thirty (30) day period, we will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require our assistance in retrieving Your Data, additional fees may apply.
The following will survive any expiration or termination of this Agreement: Sections 2.7, 4.3, 5.1, 5.3, 5.4, 6.1, 6.2, 6.3, 6.4, 7, 8.4, 9.2, 10, 11 and 12.
- Right to Terminate or Suspend Services. Without limiting Section 8.2, we may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe (i) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to UrbanSitter or any third party, or (ii) that we are required to do so by law.
Warranties & Disclaimer.
- Accuracy of Your Account Information. You agree to provide UrbanSitter with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as we may request (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify us in writing if any Account Information changes. You agree that UrbanSitter has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.
- DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, URBANSITTER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. URBANSITTER DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH URBANSITTER AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “URBANSITTER PARTIES”).
You agree to indemnify, defend, and hold harmless the UrbanSitter Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages, losses, liabilities, judgements, penalties, fines, costs and expenses (including, but not limited to, attorneys’ fees and costs) arising from or relating to: (i) any actual or alleged breach by you or an Affiliate of any provisions of this Agreement; (ii) any access to or use or misuse of the Services by you or an Affiliate or End User; (iii) any interaction between you and an End User or other third party, (iv) any interaction between an End User, including, without limitation, one of your caregivers, and another End User or other third party, (v) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (vi) any dispute between you and another party regarding ownership of or access to Your Data. You agree that you will cooperate as reasonably requested by UrbanSitter in the defense of such claims. The UrbanSitter Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification.
Limitations and Exclusions of Liability.
YOU AGREE TO RELEASE THE URBANSITTER PARTIES FROM ANY CLAIMS, DEMANDS, DAMAGES, LIABILITY, COSTS OR EXPENSES, OF EVERY KIND AND NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR USE OF THE SERVICES, OR (II) ANY CLAIM OR CONTROVERSY THAT MAY ARISE FROM ANY DISPUTES BETWEEN OR AMONG YOU, YOUR CAREGIVERS AND/OR OTHER END USERS OR OTHER THIRD PARTIES.
URBANSITTER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA FROM URBANSITTER TO STRIPE, ITS THIRD-PARTY PAYMENT PROVIDER. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE URBANSITTER PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH URBANSITTER AND THE URBANSITTER PARTIES.
IN NO EVENT WILL ANY OF THE URBANSITTER PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM (I) INTERACTIONS BETWEEN OR AMONG YOU, YOUR CAREGIVERS AND/OR OTHER END USERS, WHETHER ONLINE OR OFFLINE, (II) YOUR RELIANCE ON INFORMATION OR OTHER CONTENT CONTAINED IN AN END USER’S PROFILE OR TRANSMITTED TO OR BY ANY END USER, AND (III) REVIEWS OR COMMENTS MADE ABOUT YOU OR YOUR CAREGIVERS BY OTHER END USERS, EVEN IF URBANSITTER, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Governing Law. California law governs this Agreement, as well as any claim, cause of action or dispute that might arise between you and UrbanSitter, without regard to conflict of law provisions. For any such claim, cause of action or dispute, you agree and consent to the exclusive jurisdiction and venue of the state and federal courts in the City and County of San Francisco.
- Mandatory Informal Dispute Resolution. If you have any dispute with UrbanSitter arising out of or relating to this Agreement, you agree to notify UrbanSitter in writing with a brief, written description of the dispute and your contact information, and UrbanSitter will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction.
- Entire Agreement. This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersedes any prior agreements between you and UrbanSitter, directly or as assignee of Sitter, Inc., with respect to the subject matter hereof including any prior Nanny Agency Enterprise Addendum. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between UrbanSitter, on the one hand, and you or any Affiliate, on the other hand.
- Waiver and Severability. No waiver of any provision of this Agreement by UrbanSitter will be effective unless in writing and signed by UrbanSitter. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without UrbanSitter’s prior written consent. UrbanSitter may assign, transfer or sublicense any or all of UrbanSitter’s rights or obligations under this Agreement without restriction.
- Notices. Any notices provided by UrbanSitter under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from UrbanSitter through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in this Agreement, any notices to UrbanSitter under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to UrbanSitter, Attn: Sitter Pro Customer Support, 601 California Street, #607 San Francisco, CA 94108.
- Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving UrbanSitter’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
- Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and UrbanSitter.
- DIGITAL MILLENNIUM COPYRIGHT ACT.
UrbanSitter respects the intellectual property rights of others and expects users of the Services to do the same. UrbanSitter may remove content that, in its sole discretion, appears to infringe the intellectual property rights of others. In addition, UrbanSitter, in its sole and absolute discretion, may terminate the accounts of users of the Services who infringe the intellectual property rights of others. If you believe any materials on the Services infringe your copyright, you may request removal of those materials from the Services by contacting UrbanSitter’s copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
UrbanSitter’s Copyright Agent is:
Copyright Agent UrbanSitter, Inc. 601 California Street, #607 San Francisco, CA 94108 Email: firstname.lastname@example.org Telephone: 415-653-1340
For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated by you to access and use the Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated by you to access and use the Services under this Agreement.
“Aggregated Data” means anonymized or aggregated data derived by or through the operation of the Services that is created by or on behalf of UrbanSitter and that does not reveal any personally identifying information.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and/or you.
“Confidential Information” means (a) any software utilized by UrbanSitter in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any non-standard terms agreed to by the Parties in an Order Form or other separate written document.
“Documentation” means online user guides, documentation, and help and training materials, as may be updated by UrbanSitter from time to time, accessible at www.sitter.app, and any other materials provided by UrbanSitter as part of the Services.
“End User” means a business or individual that schedules care-related services from, through, or with you through the Services, that you market to, communicate with, or target through the Services, or that otherwise interacts with you or one of your care providers through the Services. For clarity, care providers and care seekers that connect, communicate or otherwise interact with you or one of your care providers through the Sitter Pro App are End Users.
“Franchisee” means any party that is bound by a franchise agreement with you, and that you have designated to access and use Services under this Agreement. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.
“Marketing Services” means UrbanSitter’s Sitter Pro online marketing platform, which allows consumers to locate Sitter Pro subscribers and book their services, directly through the Sitter Pro App and through our partner applications.
“Order Form” means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable fees (or if the Services are free), and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
“Professional Services” means our supplemental, fee-based technical support services described at https://sitter.app/professional-services-terms-of-service/ (or such other URL as specified by UrbanSitter), as may be updated by UrbanSitter from time to time.
“Sitter Pro” means the brand name of the Software Service, which name is subject to change in UrbanSitter sole discretion.
“Sitter Pro App” means the consumer-facing, downloadable mobile app made available by UrbanSitter and known as the “Sitter Pro App” (and its successor products), which allows consumers to use their mobile devices to find, book and pay for the services of participating Sitter Pro subscribing businesses.
“Third Party Offerings” means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.
“Website” means www.sitter.app and any other websites through which UrbanSitter makes the Software Service available.
“Your Data” means any data, information or material provided or submitted or made available by you or your Affiliates to or through the Services. For clarity, Your Data excludes Sitter Pro Data and Aggregated Data.
Copyright © 2019 UrbanSitter, Inc.