Terms of Service

Last Modified: September 6, 2018

1. Agreement between You and KidApply

Please read the following terms of service (the "Terms") carefully. By clicking the "I Accept" box or otherwise agreeing to purchase any service or services (collectively, the "Service") offered by KidApply LLC, an Oregon limited liability company (collectively, "KidApply" or "we"), on or through any site made available by KidApply, including mobile sites and the site located at pdxwaitlist.com and kidapply.com and all related subdomains (e.g., join.pdxwaitlist.com or apply.pdxwaitlist.com) (collectively, the "Site"), you acknowledge that you have read, understood and agree to be bound by these Terms, and the terms and conditions of the Privacy Policy (as defined below), when using such Service. The term "you" (and "your") for purposes of these Terms, means both you in your individual capacity, and if applicable, the company or other legal entity whom you represent and on whose behalf you use the Service.

In order to use the Service you must agree to these Terms. However, in addition to clicking the "I Accept" box, you may also agree to the Terms by actually using the Service. You acknowledge and agree that KidApply will treat your use of the Service as acceptance of these Terms from the time you first use the Service.

KidApply reserves the right to change any of the terms and conditions contained in these Terms, including the Service and/or any policies or guidelines governing the Service, at any time and in its sole discretion. While we will endeavor to provide direct notice to you of any changes, you are responsible for periodically checking the Site to determine if any changes have been made and we are not liable for your failure to do so or our failure to provide such direct notice to you. Your continued use of the Service following any revision to these Terms will constitute your acceptance of the changes or modifications to these Terms. If you do not agree to any changes to these Terms, do not continue to use the Service.

2. User Accounts

In order to use the Service, you must register with us to open a KidApply user account ("Account"). By opening an Account, you represent and warrant that: (a) all information you submit in connection with your opening and use of your Account is true, accurate, current, and complete; (b) you will promptly notify us if your information changes so that we can update our records; (c) you are aged 13 or older; the Service is not intended for persons under 13; and (d) your use of the Service does not violate any applicable law, rule or regulation. You are responsible for maintaining this information current.

You are solely responsible for maintaining the security and confidentiality of the information you hold for your Account, including, without limitation, your user name and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify KidApply immediately if you become aware of any unauthorized use of your Account, user name or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by KidApply or any third party due to someone else using your Account, user name or password as a result of your failing to keep your Account information secure and confidential. You are strictly prohibited from using anyone else's Account, user name or password at any time and for any reason. KidApply is not liable to you or any third party for your failure to comply with your obligations under this paragraph.

The Service is made available by KidApply to the following user categories (collectively, "Users"): (i) individual child care providers (each, a "Provider") for use in connection with accepting and managing child care applications ("Applications"); and (ii) individual parents and/or legal guardians (each, a "Parent or Guardian") for use in finding Providers and submitting and managing Applications.

3. Your Privacy

In order to use the Service you will be required to provide certain personally identifiable information to KidApply (e.g., your first and last name, the name of applicable children, your telephone number, your e-mail and physical address, other information required by applicable Providers, and, if applicable, your credit card information). KidApply will only use such personally identifiable information in accordance with the terms of our privacy policy (the "Privacy Policy"). In this regard, you agree to the then-current version of the Privacy Policy that you can find and read at https://www.kidapply.com/privacy-policy. You hereby agree that we may use your personally identifiable information in accordance with the terms of the Privacy Policy.

4. Fees

The fees that Parents or Guardians are required to pay to use the Service and submit Applications are set forth in the applicable physical or electronic quote and/or other ordering document provided by KidApply (the "Order") to each such Parent or Guardian. Fees will be billed in advance in accordance with such Order. If applicable, the credit card you maintain on file with KidApply in your Account will be automatically charged in accordance with each such Order. You are responsible for maintaining up to date credit card information in your Account. KidApply reserves the right to suspend or terminate your use of the Service (and access to your Content) if you fail to pay any fees due in connection with your use of the Service. Any outstanding fees are immediately due and payable upon termination of your use of the Service for any reason.

To the greatest extent permitted by applicable law, and without affecting your credit card issuer's rights, you hereby waive all claims relating to fees unless you notify KidApply of any dispute or other fee-related claim within thirty (30) calendar days of the fees being charged to your credit card.

Within thirty (30) days following receipt of fees from Parents or Guardians, KidApply will pay the applicable Provider the fees set forth in the Order provided to such Provider on behalf of such Parent or Guardian.

To the greatest extent permitted by applicable law, any refunds of fees are at the sole discretion of KidApply, and refunds will only be provided in the form of a credit against future fees for the Service. Nothing in these Terms obligates KidApply to extend credit to any person. You acknowledge and agree that any credit card and related billing and payment information that you provide to KidApply may be shared by KidApply with third party service providers who work on KidApply's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to KidApply and servicing your Account. KidApply may also provide information in response to valid legal processes, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. KidApply shall not be liable for any use or disclosure of such information by such third parties.

5. KidApply's Proprietary Rights

You hereby acknowledge and agree that KidApply (or its licensors) own all legal right, title and interest in and to the Site and Service, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Service (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and KidApply, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and its content (except for your Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by KidApply or licensors.

Nothing in these Terms gives you any right to use any of KidApply's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by KidApply under these Terms are reserved.

Subject to your compliance with these Terms, including, without limitation, your payment of all applicable fees, KidApply hereby grants you a limited, personal, worldwide, royalty-free, non-transferable, non-sublicensable and non-exclusive license to use the Service for your internal business use, to store and manage your Content in such manner as permitted and/or specified by KidApply from time-to-time in any applicable documentation or Service descriptions made available by KidApply. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by KidApply, in the manner permitted by these Terms.

KidApply shall fully own and retain all rights to anonymous usage data derived from your use of the Service ("Usage Data") as aggregated with usage data from our other customers for our own business purposes such as support, operational planning, product innovation and sales and marketing of our services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify you or any individual.

6. Service Use Restrictions

You hereby represent and warrant that you will not, and will not permit any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Service or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Service, or any other systems or networks connected to the Site or Service, or to any KidApply server, by hacking, password "mining", or any other illegal means; (b) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Service or any transaction being conducted on the Site or through the Service, or with any other person's use of the Site or Service; (c) breach any security measures implemented on the Site or in the Service; (d) pretend that you are, or that you represent, someone else, or impersonate any other person; (e) use the Service or Site for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; or (f) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the any KidApply proprietary software used to provide, maintain, or otherwise applicable to, the Service, or made available to you in connection with the Service.

You hereby agree that you will notify KidApply if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.

7. Provider Content & License from You

Each Provider hereby agrees that you are solely responsible and liable for any and all information, data files, written text, computer software, music, audio files or other sounds, photographs, videos, images, and other content, including any of the foregoing provided in connection with an Application (collectively "Content"), that you store, transmit, display, or otherwise use in connection with the Service, and for the consequences of your actions in connection with such Content and your use of the Service. You agree that KidApply has no responsibility to you or to any third party in connection with such Content. You are solely responsible obtaining consent from third parties on connection with Application Content and for any losses or damage suffered by KidApply in connection with your Content. You hereby represent and warrant that you will not store or otherwise use any Content in connection with the Service that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; (d) violates any third party's copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; or (f) contains a virus, malicious code or any other harmful component.

KidApply reserves the right, at any time in its sole discretion and without notice to you, to pre-screen, review, monitor, flag, filter, modify, refuse or remove any or all Content from the Service, but KidApply has no obligation to do so. You agree to immediately take down, delete or modify any Content that is stored by you through the Service that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from KidApply. In the event that you elect not to comply with a request from KidApply to take down, delete or modify certain Content, KidApply reserves the right to directly take down, delete or modify such Content. KidApply assumes no liability or responsibility arising from your activities in connection with the Service, including, without limitation, Content that you store or otherwise use in connection with Service.

KidApply claims no ownership or control over your right, title and interest in your Content. You retain copyright and any other intellectual property and other proprietary rights you already hold in your Content, and you are solely responsible for protecting those rights, as you deem appropriate. By submitting, storing, displaying, or otherwise using your Content in connection with the Service, you hereby grant KidApply a worldwide, royalty-free, fully-paid-up, non-exclusive license to reproduce, perform, modifying display, distribute, and otherwise use such Content for the purpose of enabling KidApply to provide the Service to you, including, without limitation, storing and retrieving the Content, making the Content available through the Service, adapting the Content for technical display and transmission, conforming the Content to the limitation and terms of the Service, and any other use related to the maintenance, provision and improvement of the Service

You hereby agree that KidApply, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your web site) for the purpose of advertising or publicizing the Service.

KidApply will not disclose any of your Content, except: (a) if you expressly authorize us to do so in connection with your use of the Service; (b) as necessary to provide the Service to you; or (c) to comply with the request of any governmental or regulatory body, subpoenas or court orders, or as otherwise required by applicable law, rule or regulation. If we receive a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of any of your Content, we will use good faith efforts to provide you with reasonable notice to allow you to seek a protective order or other appropriate remedy (except to the extent KidApply's compliance with the foregoing would cause it to violate a court order or other legal requirement). You are required to respond to third party requests about your Content, and we may provide your contact information to third parties, and suspend or terminate your access to the Service and your Content, if you fail to respond to such third party requests.

KidApply may use usage patterns, trends and other statistical data derived from your Content and use of the Service for purposes of providing, operating, maintaining, or improving the Service.

8. Feedback

If you send or transmit any communications or materials to KidApply by mail, electronic mail, telephone, or otherwise ("Feedback"), suggesting or recommending changes to our Site or Service, including without limitation, new features or functionality relating thereto, any comments, questions, suggestions, or the like, all such Feedback are, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by KidApply or its agents, violates any of your rights including moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way KidApply uses such Feedback.

You hereby assign all right, title, and interest in, and KidApply is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that KidApply is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

9. Applications; Child Care

You acknowledge and agree that KidApply is not responsible in any way for the quality and accuracy of (i) the contents of any Application, (II) THE QUALITY OF ANY CHILDCARE SERVICES PROVIDED BY A PROVIDER, REGARDLESS OF WHETHER OR NOT KIDAPPLY PROVIDED ASSISTANCE TO a PARENT OR GUARDIAN IN FINDING SUCH PROVIDER and/or (iii) any Provider's management of Applications, including whether or not a Provider consistently applies its published guidelines regarding such management.

WHILE KidApply PERIODICALLY VERIFIES THAT PROVIDERS ARE LICENSED UNDER APPLICABLE LAW, KidApply makes no representations or guarantees concerning the quality of any child care made available by a Provider. Each Parent or Guardian expressly acknowledges and agrees that such person is solely responsible for evaluating and ensuring the quality of such care.

10. Exclusion of Warranties

YOUR USE OF THE SITE AND SERVICE IS ENTIRELY AT YOUR OWN DISCRETION AND RISK. THE SITE AND SERVICE ARE FURNISHED TO YOU "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. KidApply, on behalf of itself, and ON BEHALF OF ITS PARENTS or guardians, AFFILIATES, SUBSIDIARIES, licensors, PROVIDERS AND third party SERVICE PROVIDERS, AND KIDAPPLY'S AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS: (A) EXPRESSLY DISCLAIMs ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOes NOT WARRANT THAT THE SERVICE, or data provided through the service, WILL MEET YOUR REQUIREMENTS, or that ITS OPERATION WILL BE timely, UNINTERRUPTED, secure, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOes NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF ITS ACCURACY, RELIABILITY, timeliness, completeness, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE.

THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND KidApply. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KidApply or ANY PERSON ON BEHALF OF KidApply SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.

NOTHING IN THESE TERMS, THIS SECTION 10, OR SECTION 11 BELOW, SHALL EXCLUDE OR LIMIT KIDAPPLY'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

11. Limitation of Liability

SUBJECT TO SECTION 10 ABOVE, IN NO EVENT WILL KidApply OR KidApply PARTIES BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF KidApply OR KidApply PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

KidApply AND KidApply PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICE. IF, NOTWITHSTANDING THE FOREGOING, KidApply OR ONE OF KidApply PARTIES IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, KidApply OR THE RELEVANT KidApply PARTY'S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO KidApply DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO KIDAPPLY'S LIABILITY.

12. Indemnification

You hereby agree to indemnify, defend and hold harmless KidApply and KidApply Parties (each an "Indemnified Party"), from and against any and all liability and costs (including, without limitation, attorneys' fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your use of the Service; (b) any breach or alleged breach by you of these Terms; (c) any Feedback or Content provided by you; (d) any breach or alleged breach by you of a third party's rights, including, without limitation, any intellectual property, privacy or publicity rights; (e) any damage caused by or alleged to have been caused by you to the Site or Service; or (f) any actual or alleged violation or non-compliance by you with any applicable law, rule or regulation.

Counsel you select for defense or settlement of a claim must be consented to by KidApply and/or the Indemnified Party(s) prior to counsel being engaged to represent you and KidApply and/or the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. KidApply and/or the Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of KidApply or any Indemnified Party(s) without the prior written consent of KidApply and/or the Indemnified Party(s).

13. Changes to Service

KidApply is constantly striving to provide the best possible experience for its Service users. You acknowledge and agree that the form and nature of the Service which KidApply currently provides may change from time-to-time without prior notice to you. Changes to the form and nature of the Service will be effective with respect to all versions of the Service. Examples of changes to the form and nature of the Service include, without limitation, changes to fees and payment policies, security patches, additional functionality, reduced functionality, and other enhancements.

14. Termination of Service

You may stop using the Service at any time by closing your Account, or ceasing to use the Service. In such event, you will not be entitled to any refund of any fees that you have paid prior to you ceasing to use the Service.

KidApply reserves the right in its sole discretion to cease or suspend providing all or any part of the Service immediately without any notice to you, if: (a) you breach, or threaten or intend to breach, these Terms; (b) KidApply is required to do so under any applicable law, rule or regulation; or (c) the Service relies on data, services or another business relationship between KidApply and a third party service provider, and such relationship terminates or changes in such a way that affects KidApply's ability to continue providing the Service.

Any of your obligations under these Terms which by their nature are intended to survive the termination of your use of the Service, shall continue to apply to you after you cease to use the Service.

KidApply may notify the relevant law enforcement authorities or other third parties, of any illegal or other prohibited conduct by you, including, without limitation, your violation of these Terms or unauthorized use of the Site or Service

15. Governing Law and Venue

These Terms will be construed and enforced in all respects in accordance with the laws of the state of Oregon, without reference to its choice of law rules. Except as set forth below in Section 15.2, the federal and state courts seated in Portland, Oregon shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that KidApply may seek to enforce any judgment in its favor in any court of competent jurisdiction.

Notwithstanding the foregoing, KidApply may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to KidApply for which there is no adequate remedy at law.

The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Site or Service. Furthermore, these Terms (including without limitation, the Site and Service) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.

Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.

16. Miscellaneous Legal Terms

These Terms and the Privacy Policy, together constitute the entire agreement between you and KidApply with respect to the Service (excluding any services which KidApply may provide to you under a separate written agreement), and completely supersedes, cancels and replaces any and all other written or oral agreements or understandings previously existing between you and KidApply with respect to the Service.

The failure of KidApply to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.

Any notice or other communications by KidApply relating to the Service may be made by letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.

These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Indemnified Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.

KidApply may assign or transfer its rights, or delegate any performance, under these Terms to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your performance, under these Terms to any third party without in each and every case, KidApply's express prior written consent.

KidApply will not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, and Internet disturbances.

KidApply may take any legal action against you to enforce these Terms or to prevent the breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, KidApply may without limitation, immediately terminate or suspend your use of the Service and access to your Content, if KidApply believes in its sole discretion that you are violating these Terms, or that you intend to do so.

KidApply may add to, change or remove any part, term or condition of these Terms or Privacy Policy at any time without prior notice to you. It is your responsibility to check these Terms and Privacy Policy periodically for changes. By continuing to use the Service, you are indicating your acceptance of such changes. However, we will provide written notice to you of any significant changes to these Terms or Privacy Policy (including notices posted on the Site or sent to your registered e-mail address).

You may not access the Service if you are a direct competitor of KidApply's, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

© 2019 KidApply LLC, All rights reserved