These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you” or “user”) and WeeCare, Inc. DBA Upwards (“Upwards,” “we,” “us” or “our”), concerning your access to and use of the www.upwards.com website and the services available via that website as well as via any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site and Services”). You agree that by accessing the Site and Services, you have read, understood, and agree to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted to the Site and Services from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site and Services after the date such revised Terms of Use are posted.
The information provided on the Site and Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site and Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Site and Services are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site and Services.
UPWARDS IS A PLATFORM
Upwards enables parents or guardians (“Parents”) seeking childcare services to connect with childcare providers (“Providers”), together “Registered Users”, including through Provider listings on our Site and Services, by allowing Parents to contact Providers through our Site and Services, and by providing Billing Services (described below) in some circumstances. Upwards is a technology services and platform provider, and we do not provide, supervise or oversee childcare services. Upwards is not a party to any agreement between a Provider and a Parent, including any agreement related to enrollment of a child, or use of a Provider’s services (a “Provider Agreement”). In addition, Providers and their authorized personnel are not Upwards' agents, affiliates or employees.
Upwards makes no representation or warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any content or information provided by, or otherwise about Providers either accessible through our Site and Services or otherwise, and we are not responsible for (i) verifying or authenticating the license status or records, past violations, or any credentials of a Provider, (ii) subject to these Terms of Use, conducting background checks or otherwise screening Provider operators or their authorized personnel, or (iii) the quality or safety of a Provider’s services. You understand and acknowledge that you are responsible for independently verifying the accuracy of any information about a Provider accessible through our Site and Services, reviewing a Provider’s policies and terms of enrollment (if applicable), and evaluating a Provider facilities and credentials (if applicable).
If you access our Site and Services as, or on behalf of, a Provider, you may be required to enter into a separate partner agreement to access some of our services, including our Billing Services (a “Partner Agreement”). In the event of any conflict between these Terms of Use and such Partner Agreement, you acknowledge and agree that the terms of the Partner Agreement will govern and control.
SERVICE DISCLAIMERS
We do not employ, jointly with Parents or otherwise, any Providers and are not responsible for the conduct, whether online or offline, of any Parent, Provider, or other user of the Site or Services. Parents are responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish with Providers (including without limitation, as applicable, Ban-the-Box, Fair Chance, payroll, tax,minimum wage, child labor and meal and rest laws).
We do not control or vet the accuracy, thoroughness or reliability of the representations or other content made by Parents and Providers on the Site or in connection with the Services, and we do not assume and expressly disclaim any responsibility for, such accuracy, thoroughness or reliability of any information provided by Providers or Parents on or off the Site or Services. We do not assume and expressly disclaim any liability that may result from the use of information provided on our Site and Services.
We do not refer or recommend Parents or Providers nor do we make any representations about the suitability, reliability, timeliness, or accuracy of the services provided by Providers or the integrity, responsibility or actions of Parents or Providers whether in public, private or offline interactions. Any screening of a Parent or Provider by Upwards is limited and should not be taken as complete, accurate, up-to-date or conclusive of the individual’s or entity’s suitability to be, or to engage with, care provider.
We are not an employment or staffing agency or employer of record, and we do not secure or procure employees for any Parents, nor do we secure or procure opportunities for employment for any Providers. As such, users are solely responsible (and Upwards is not responsible), for any tax, workers’ compensation insurance, withholding or reporting, including, but not limited to, unemployment insurance, social security or payroll withholding tax or income reporting in connection with any services provided by Users.
We do not control, monitor, supervise, or oversee the quality, timing, hours, pay, legality, or any other aspect of services delivered by Providers, nor do we require Providers to accept or work any jobs or deliver any services at all.
We do not provide any medical, diagnostic, treatment or clinical service or engage in any conduct that requires a professional license.
We may offer certain Registered Users the opportunity to verify certain information such as their email address, cell phone number, or, in the case of child care centers, their state license information. If we indicate that certain information has been verified, it means that the Registered User has complied with the process we have established for verifying such information. However, we do not guarantee, nor do we represent or warrant, that the information is accurate or that it belongs to the Registered User who supplied it.
BACKGROUND AND VERIFICATION CHECKS
Upwards may conduct initial background checks on Providers, in accordance with the Fair Credit Reporting Act (“FCRA”) and any other applicable law, to preliminarily vet Providers so that they can be featured on the Site and Services and as described below Parents have the ability to conduct deeper/broader background checks, consistent with applicable law.
Providers Can Order, Authorize, or Otherwise Provide Background Checks about Themselves and Can Authorize the Sharing of Them with Upwards and Parents (both Parents who are considering engaging with a Provider, as well as Parents who are already engaged).
We offer to individuals who have registered as Providers and Parents one or more background check services from third-party consumer reporting agencies (“Background Checks”). All Background Checks require payment of a separate fee by the Provider or Parent who is initiating the Background Check request and are subject to the consent of the Provider on whom the check is being performed. Upwards does not provide refunds for Background Checks in any circumstance.Upwards may also enable Providers to submit their own Background Checks in certain circumstances, subject to specific terms and conditions. Each of these Background Checks is regulated by applicable law, including the FCRA, and the background reports resulting from these services are considered “consumer reports” under the FCRA. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers’ compensation, driving, employment, military, civil, and educational data and reports. Upwards will receive a copy of each Background Check you order or authorize through Upwards. See below for information regarding Upwards' use of these Background Checks. You are responsible for making sure that the email address you provide to Upwards is correct, knowing that sensitive information will be sent to it. If you are a Provider and you have ordered a Background Check on yourself from a third-party consumer reporting agency through Upwards, or if you have provided your own Background Check, we may indicate in your profile that you have completed that check. However, we will not share the results with any other site visitor or Registered User without your specific authorization.
Special Responsibilities of Parent Users of Background Check under FCRA
The use of any Background Check reports obtained through the Site is governed by the FCRA and in some cases, by state laws as well. If you order or request access to Background Check on a Care Seeker, you are considered an end user of the check, and must agree to a required End User Certification before the check will be processed. This End User Certification requires you to certify that you will comply with the FCRA and any applicable state laws, and summarizes key legal obligations. A summary of your responsibilities in using the information contained in the Background Check can be found http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know. If there is negative data in a check you receive, and you choose to take “adverse action” (i.e. if you choose to pass on that individual’s candidacy) on the basis of this negative data, you must agree to take certain procedural steps, which can be found at http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know. These include notifying the individual who is the subject of the report of your decision to take adverse action based on information contained in the report and the subject’s right to contest the accuracy or completeness of the report. Depending on the specific Background Check you order, Upwards may provide a mechanism for you to request that the consumer reporting agency who performed the check complete these steps on your behalf. Where such a mechanism is not available, you are responsible for making any required notifications yourself. If the subject contests the report with the consumer reporting agency, you are required to suspend the hiring process while the agency researches the accuracy and completeness of the report.
Upwards May Review and Use Background Checks You Order, Authorize, or Otherwise Provide About Yourself
By registering for and using the Site or Services as an individual Provider, and subject to your authorization, you acknowledge and agree that Upwards may review and use any Background Checks you have ordered, authorized, or otherwise provided about yourself for the purpose of protecting the safety and integrity of our Site and its users, which may, in the case of certain Providers, be considered an employment purpose pursuant to the FCRA. Upwards reserves the right to terminate your account based on the information contained in such report, even if such information was subsequently dismissed.
If Upwards terminates your access to the Site or Services on the basis of information in a Background Check, we will notify you and provide you the name and contact information of the consumer reporting agency that created the report. We will also provide you a copy of the report unless the consumer reporting agency has already provided you a copy or access to it. You hereby represent, understand and expressly agree that Upwards does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these Background Checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it and not Upwards.
Upwards May Order and Use Background Screenings About You
By registering for and using the Site or Services as a Parent or Provider, you hereby acknowledge and agree that Upwards has the right, but not the obligation, to use a third-party consumer reporting agency on an ongoing basis to use your personal information to run periodic background screenings on you for the purpose of protecting the safety and integrity of our Site and its users, which may, in the case of certain Providers, be deemed to be an employment purpose under the FCRA. Subject to certain additional disclosures and authorizations, if applicable to you as a Provider, Upwards may order these screenings when you register with Upwards and thereafter in connection with your continued use of our Services and/or interaction with our Site (such as by contacting or communicating with other users, posting or updating a job or profile, ordering or authorizing a Background Check, etc.). These preliminary screenings may also regulated by FCRA, and the background reports resulting from these services may be considered “consumer reports” under FCRA. You understand and agree that Upwards may review the information provided by the third-party consumer reporting agency and that Upwards retains the right to terminate your Upwards registration based on the information it receives from these checks, even if such information was subsequently changed or corrected. If we terminate your account or access to the Site on the basis of information in a background report, we will notify you and provide you the name and contact information of the consumer reporting agency that created the report. We will also provide you access to a copy of the report unless the consumer reporting agency has already provided you a copy or access to it. You hereby represent, understand and expressly agree that Upwards does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it (and not Upwards) within the time period specified in your notice. Notwithstanding this, you agree that Upwards is under no obligation to reinstate any accounts it may have terminated even if the information that led to the termination is subsequently changed or corrected.
BY AGREEING TO THESE TERMS AND USING OUR SITE, AND, IF APPLICABLE TO YOU AS A PROVIDER, SUBJECT TO YOUR ADDITIONAL AUTHORIZATION, YOU AGREE TO ALLOW UPWARDS TO PERFORM THESE INTERNAL BACKGROUND CHECKS FOR THE PURPOSES DESCRIBED ABOVE. IF YOU DO NOT WANT THESE INTERNAL BACKGROUND CHECKS TO BE PERFORMED, YOU SHOULD NOT USE UPWARDS.
Upwards May Regularly Verify Your Identity and the Accuracy of Your Representations and Warranties
By registering as a Provider or Parent, and, if applicable to you as a Provider, subject to your additional authorization, you authorize Upwards, and acknowledge that for purposes of promoting the safety and integrity of its Site and Service, Upwards reserves the right, but not the obligation, to utilize third party service providers to verify on an ongoing basis that your registration data is accurate and that the representations and warranties addressing legal matters such as complaints, arrests, sex offender status, etc. are also true (“Verification Checks”). These third parties may use data from a variety of sources, under a variety of circumstances, for these site safety purposes including, without limitation, information from national criminal databases, sex offender registries, certain media streams, terrorist watch lists, criminal and fugitive watch lists, fraud watch lists, law enforcement reports, and other data. You agree that Upwards may take such action in response to Verification Checks as it deems appropriate in its sole discretion, including without limitation suspending and/or terminating your account, should it determine that you have violated any representation or warranty or any other provision of these Terms or are otherwise unsuitable for Upwards. You also hereby represent, understand and expressly agree that Upwards does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in a Verification Check. We do not typically communicate the results of a Verification Check to any third party, though we reserve the right to do so for law enforcement or other safety-related purposes in accordance with applicable laws.
BY AGREEING TO THESE TERMS, AND, IF APPLICABLE TO YOU AS A PROVIDER SUBJECT TO YOUR ADDITIONAL AUTHORIZATION, YOU AGREE TO ALLOW UPWARDS TO PERFORM THE VERIFICATION CHECKS DESCRIBED ABOVE. IF YOU DO NOT WANT THESE VERIFICATION CHECKS TO BE PERFORMED, YOU SHOULD NOT USE UPWARDS.
Important Limitations About Background Checks; Release of Liability for Results of Background Checks, Internal Background Checks, and Verification Checks.
SPECIAL NOTICE FOR MASSACHUSETTS AND NEW HAMPSHIRE: Criminal county searches conducted in Massachusetts and New Hampshire as part of the criminal records check and the criminal + MVR records check (for individuals who are believed to have lived in one or both of these states during the seven years preceding the background check request) search only the Superior Court and a single District Court in the county seat or its equivalent for each county listed below. Criminal records (including misdemeanors and felonies) from other courts in these states will not be searched.
This is an illustrative, non-comprehensive, list of certain state and county limitations of the background checks offered through Upwards; additional limitations may apply in certain jurisdictions, including on the federal level. For example, for many states only certain registered sex offender information is reported, and for many states, only a subset of felony convictions are reported (and not any misdemeanors, charges or arrest records).
In addition to legal and reporting system limitations of background checks, each check is performed with the authorization of the person being checked, using information he or she provides, such as home address, social security number, date of birth, and name. If a candidate provides incorrect information, the check might be run with inaccurate identifying data, which can impact the validity of the criminal check. Finally, criminal records are not always reported accurately or promptly, and human and electronic error can result in inaccurate or incomplete reporting. Consequently, even the most comprehensive background check offered may not disclose the existence of all criminal records in all jurisdictions. If you decide to access, use, or share information provided by a Background Check, you agree to do so in accordance with applicable law. You also agree to release, indemnify and hold harmless Upwards from any loss, liability, injury, death, damage, or costs that may result from your use of, reliance on, or sharing of the information contained in a Background Check regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any such information. You expressly acknowledge that Upwards has no obligation to perform Background Checks, Internal Background Checks, or Verification Checks on any Registered Users. To the extent Upwards performs such checks on certain Registered Users, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those users have provided or of their eligibility to use the Services.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site and Services comprise our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site and Services (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. The Content and the Marks are provided on the Site and Services “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site and Services and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Site and Services, you are granted a limited license to access and use the Site and Services and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, noncommercial use. We reserve all rights not expressly granted to you in and to solely for your personal, noncommercial use. We reserve all rights not expressly granted to you in and to the Site and Services, the Content and the Marks.
USER REPRESENTATIONS
By using the Site and Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Use; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Site and Services through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Site and Services for any illegal or unauthorized purpose; and (7) your use of the Site and Services will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to immediately suspend or terminate your account and refuse any and all current or future use of the Site and Services (or any portion thereof).
Registered Users are solely responsible for interviewing, vetting, requesting background and reference checks on, verifying information provided by, and selecting an appropriate Parent or Provider for themselves or their family.
Each Parent is responsible for complying with all applicable employment and other laws in connection with any employment relationship they establish, including verifying the age of the Provider they select as well as that Provider’s eligibility to work in the US.
USER REGISTRATION
You may be required to register with the Site and Services. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
FEES AND PAYMENT
Daycares may use our Site and Services or other services to invoice Parents for tuition, fees, or other costs related to the Daycare’s services (our “Billing Services”). You acknowledge and agree that Daycares are solely responsible for obtaining all required consents and authorizations to invoice a Parent through our Billing Services, and determining the amounts invoiced through our Billing Services. If you use our Site and Services as, or on behalf of, a Daycare, you acknowledge and agree that your use of our Billing Services is subject to the applicable Partner Agreement between you and Upwards.
If you make payments through our Billing Services as a Parent, you acknowledge and agree that all such payments are subject to the following payment terms. You agree to provide current, complete, and accurate payment and account information for all purchases made via the Site and Services. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. You represent and warrant that you have the legal right to use all payment method(s) represented by any payment information you provide to us (or our third-party service provider). Daycare Fees are determined solely by the Daycare, and you are responsible for reviewing all applicable terms of your Daycare Agreement to verify the amounts of your payment. Applicable sales tax will be added to the total amount of your payment, which sales tax amount will be communicated to you. All payments shall be in U.S. dollars.
Our Billing Services allow Parents to make a one-time payment, or an automatically recurring payment (“Recurring Payment”). As a Parent, you will agree to a billing period (e.g., weekly or monthly) which will be clearly communicated to you when you make your first Recurring Payment. When you make any payment through our Billing Services, you authorize us (or our third-party service provider) to charge you using the payment method(s) represented by the payment information you provide.
If you make a Recurring Payment, you will be charged on your first payment date, and at the start of each applicable billing period thereafter until you cancel your Recurring Payment. We will provide notice of your Recurring Payment before the start of the applicable billing period in accordance with applicable laws. By making a Recurring Payment, you acknowledge that you will be billed on an automatically recurring basis, and you accept responsibility for all recurring payment obligations prior to cancellation of your Recurring Payment by you, Upwards, or the Daycare.
Upwards may use a third-party service provider to provide Billing Services. By making a payment through our Billing Services, you expressly authorize us to provide your payment information to third parties so we can complete your transaction. You also agree that we may create an account for you with our third-party service provider, or require that you create an account with such third-party service provider, and that you will agree to any of such third-party service provider’s applicable terms and conditions. Our current provider is Stripe, and by making a payment through our Services, you agree to Stripe’s terms and conditions for Stripe Connected Accounts, available at https://stripe.com/connect-account/legal. We reserve the right to change our third-party service provider at any time.
CANCELLATION
Subject to applicable law, all purchases are final and non-refundable. You can cancel your Recurring Payment at any time by contacting us using the contact information provided below, or through our app in the payments section. Your cancellation will take effect at the end of the then-current paid term. Subject to applicable law, you will not receive a refund of any portion of the Recurring Payments you have paid for the then-current billing period at the time of cancellation.
If you are unsatisfied with our services, please email us at support@upwards.com or call us at (310) 254-9458.
PROHIBITED ACTIVITIES
You may not access or use the Site and Services for any purpose other than that for which we make the Site and Services available. The Site and Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Site and Services, you agree not to:
Systematically retrieve data or other content from the Site and Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
Make any unauthorized use of the Site and Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
Use the Site and Services to advertise or offer to sell goods and services unless approved by us.
Circumvent, disable, or otherwise interfere with security-related features of the Site and Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and Services and/or the Content contained therein.
Engage in unauthorized framing of or linking to the Site and Services.
Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
Make improper use of our support services or submit false reports of abuse or misconduct.
Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
Interfere with, disrupt, or create an undue burden on the Site and Services or the networks or services connected to the Site and Services.
Attempt to impersonate another user or person or use the username of another user.
Sell or otherwise transfer your profile.
Use any information obtained from the Site and Services in order to harass, abuse, or harm another person.
Use the Site and Services as part of any effort to compete with us or otherwise use the Site and Services and/or the Content for any revenue-generating endeavor or commercial enterprise.
Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site and Services.
Attempt to bypass any measures of the Site and Services designed to prevent or restrict access to the Site and Services, or any portion of the Site and Services.
Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site and Services to you.
Delete the copyright or other proprietary rights notice from any Content.
Copy or adapt the Site and Services’ software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site and Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site and Services.
Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site and Services, or using or launching any unauthorized script or other software.
Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site and Services.
Use the Site and Services in a manner inconsistent with any applicable laws or regulations.
USER GENERATED CONTRIBUTIONS
The Site and Services may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site and Services, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Site and Services and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential. When you create or make available any Contributions, you thereby represent and warrant that:
The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site and Services, and other users of the Site and Services to use your Contributions in any manner contemplated by the Site and Services and these Terms of Use.
You have the written consent, release, and/or permission of each and every identifiable individual person (or the Parent of any individual under 18) in your Contributions to use the name or likeness of each and every such identifiable individual person sufficient to enable inclusion and use of your Contributions in any manner contemplated by the Site and Services and these Terms of Use.
Your Contributions are not false, inaccurate, or misleading.
Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
Your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
Your Contributions do not violate any applicable law, regulation, or rule.
Your Contributions do not violate the privacy or publicity rights of any third party.
Your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
Your Contributions do not violate any federal or state law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.
Any use of the Site and Services in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Site and Services.
CONTRIBUTION LICENSE
By posting your Contributions to any part of the Site and Services, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, nonexclusive, transferable, royalty free, fully paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels. You expressly acknowledge and agree that the foregoing license includes the right to use your Contributions in advertising and marketing materials to promote our services or a Daycare, including without limitation in mobile advertising, through social media, listings of Daycares on our Site and Services, and email or other marketing communications to our users.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site and Services. You are solely responsible for your Contributions to the Site and Services and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site and Services; and (3) to prescreen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
MOBILE APPLICATION LICENSE
Use License
If you access the Site and Services via a mobile application, then we grant you a revocable, nonexclusive, non transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms of Use. You shall not: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial email; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
Apple and Android Devices
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Site and Services: (1) the license granted to you for our mobile application is limited to a nontransferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Use or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms of Use, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms of Use against you as a third-party beneficiary thereof.
SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site and Services ("Submissions") provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
THIRD-PARTY WEBSITES AND CONTENT
The Site and Services may contain (or you may be sent via the Site and Services) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site and Services or any Third-Party Content posted on, available through, or installed from the Site and Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and Services and access the Third Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site and Services or relating to any applications you use or install from the Site and Services. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
ADVERTISERS
We allow advertisers to display their advertisements and other information in certain areas of the Site and Services, such as sidebar advertisements or banner advertisements. If you are an advertiser, you shall take full responsibility for any advertisements you place on the Site and Services and any services provided on the Site and Services or products sold through those advertisements. Further, as an advertiser, you warrant and represent that you possess all rights and authority to place advertisements on the Site and Services, including, but not limited to, intellectual property rights, publicity rights, and contractual rights. We simply provide the space to place such advertisements, and we have no other relationship with advertisers.
SITE AND SERVICES MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Site and Services for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site and Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site and Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site and Services.
PRIVACY POLICY
We care about data privacy and security. By using the Site and Services, you agree to be bound by our Privacy Policy posted on the Site and Services, which is incorporated into these Terms of Use. Please be advised the Site and Services is hosted in the United States. If you access the Site and Services from the European Union, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site and Services, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States. Further, we do not knowingly accept, request, or solicit information from children or knowingly market to children. Therefore, in accordance with the U.S. Children’s Online Privacy Protection Act, if we receive actual knowledge that anyone under the age of 13 has provided personal information to us without the requisite and verifiable parental consent, we will delete that information from the Site and Services as quickly as is reasonably practical.
COPYRIGHT INFRINGEMENTS
We respect the intellectual property rights of others. It is our policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. If you believe that any material available on or through the Site and Services infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (a “Notification”).
TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Site and Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE AND SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE AND SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site and Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site and Services. We also reserve the right to modify or discontinue all or part of the Site and Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site and Services.
We cannot guarantee the Site and Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site and Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site and Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site and Services during any downtime or discontinuance of the Site and Services. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site and Services or to supply any corrections, updates, or releases in connection therewith.
GOVERNING LAW
These Terms of Use and your use of the Site and Services are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law principles.
DISPUTE RESOLUTION
Binding Arbitration
If the parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Los Angeles County, CA. Except as otherwise provided herein, the parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Los Angeles County, CA, and the parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.
In no event shall any Dispute brought by either party related in any way to the Site and Services be commenced more than two (2) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court.
Restrictions
The parties agree that any arbitration shall be limited to the Dispute between the parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Arbitration
The parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court.
PARTNER AGREEMENT
If you use our services as, or on behalf of, a Provider that has entered a Partner Agreement with Upwards, the dispute resolution terms of the Partner Agreement will govern any dispute related to the subject matter of the Partner Agreement.
CORRECTIONS
There may be information on the Site and Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site and Services at any time, without prior notice.
WARRANTY DISCLAIMER
UPWARDS IS NOT RESPONSIBLE FOR (I) THE SERVICES PROVIDED BY ANY DAYCARE, INCLUDING WITHOUT LIMITATION CHILDCARE SERVICES, PROGRAMMING OFFERED BY A DAYCARE, OR THE DAYCARE FACILITIES, (II) ANY DAYCARE’S PROMOTIONAL OR MARKETING ACTIVITIES, OR (III) A DAYCARE’S USE OF OUR BILLING SERVICES, INCLUDING ANY AMOUNTS INVOICED BY US ON BEHALF OF, OR AT THE DIRECTION OF, A DAYCARE (COLLECTIVELY, “DAYCARE OPERATIONS”). WE MAKE NO REPRESENTATIONS ABOUT THE QUALITY OR SAFETY OF A DAYCARE’S OPERATIONS, OR A DAYCARE’S CREDENTIALS OR QUALIFICATIONS.
THE SITE AND SERVICES IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND SERVICES AND OUR SERVICES, AND ANY DAYCARE’S SERVICES, WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND SERVICES, OUR SERVICES, AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE AND SERVICES’ CONTENT, INCLUDING WITHOUT LIMITATION CONTENT ABOUT A DAYCARE’S OPERATIONS, OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND SERVICES.
WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, INCLUDING CONTENT ABOUT A DAYCARE’S OPERATIONS, CREDENTIALS OR QUALIFICATIONS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE AND SERVICES OR OUR SERVICES, OR RESULTING FROM A DAYCARE’S OPERATIONS, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE AND SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE AND SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE AND SERVICES.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE AND SERVICES, ANY HYPERLINKED WEBSITE AND SERVICES, OR ANY WEBSITE AND SERVICES OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
ASSUMPTION OF RISK
We cannot guarantee that all of your interactions with other Registered Users, site visitors, their families, or others associated with them, will always be 100% safe and respectful. You agree to assume all risks when using the Site and Services, including but not limited to injury, illness, death, and all other risks associated with any online or offline interactions with users of the Site or the Services. You also agree not to rely solely on steps Upwards may take to vet or screen Providers or Parents and/or their Content, or otherwise to promote the safety of the Site and Services.
LIMITATIONS OF LIABILITY
IF YOU USE OUR SITE AND SERVICES AS A PARENT, OR IF YOU USE OUR SITE AND SERVICES AS, OR ON BEHALF OF, A DAYCARE THAT HAS NOT ENTERED A PARTNER AGREEMENT WITH UPWARDS, IN NO EVENT WILL WE OR OUR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE AND SERVICES OR OUR OTHER SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT WE HAVE COLLECTED, OR HAVE THE RIGHT TO COLLECT FROM YOU, ACCRUED DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR, IF NO PAYMENTS HAVE BEEN MADE OR ARE PAYABLE, $100.00 USD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU USE OUR SITE AND SERVICES AS, OR ON BEHALF OF, A DAYCARE THAT HAS ENTERED A PARTNER AGREEMENT WITH UPWARDS, ANY TERMS OF THE PARTNER AGREEMENT LIMITING UPWARDS' LIABILITY TO YOU WILL GOVERN AND CONTROL.
INDEMNIFICATION AND RELEASE
YOU HEREBY RELEASE AND HOLD UPWARDS HARMLESS FROM ANY CLAIM, DISPUTE, DEMAND, OR CAUSE OF ACTION THAT YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY CONNECTED WITH A DAYCARE’S OPERATIONS, INCLUDING WITHOUT LIMITATION CLAIMS RESULTING FROM UPWARDS' NEGLIGENCE IN (1) PROVIDING CONTENT OR SERVICES RELATED TO A DAYCARE, OR (2) FAILING TO VERIFY, RESEARCH, OR DISCLOSE ADEQUATE INFORMATION ABOUT A DAYCARE’S OPERATIONS.
You further agree to defend, indemnify, release and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your Contributions; (2) use of the Site and Services; (3) breach of these Terms of Use; (4) any breach of your representations and warranties set forth in these Terms of Use; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; (6) any overt harmful act toward any other user of the Site and Services with whom you connected via the Site and Services; (7) a Provider Agreement; or (8) the engagement of Providers as independent contractors. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
You understand and agree that if Upwards is found to be liable for any tax, workers’ compensation insurance, withholding tax or reporting obligation in connection with any services provided or received by you, then you will immediately reimburse and indemnify Upwards for all costs, expenses and liabilities (including any interest and penalties) relating to the same.
USER DATA
We will maintain certain data that you transmit to the Site and Services for the purpose of managing the performance of the Site and Services, as well as data relating to your use of the Site and Services. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site and Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site and Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site and Services, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE AND SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
MISCELLANEOUS
These Terms of Use and any policies or operating rules posted by us on the Site and Services or in respect to the Site and Services, and where applicable, the Partner Agreement between you and Upwards, constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Site and Services. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
CONTACT US
In order to resolve a complaint regarding the Site and Services or to receive further information regarding use of the Site and Services, please contact us at:
Upwards
5521 N University Dr
Suite 104
Coral Springs, FL 33067
(323) 421-7479
support@upwards.com
FEVER FREE TERMS OF USE
If you are using the Fever Free mobile application (the “Fever Free Application”), these Fever Free Terms of Use (the “Terms”) apply to such use. Notwithstanding the foregoing, the following sections of the Upwards Terms of Use are incorporated by reference herein: “AGREEMENT TO THE TERMS,” “INTELLECTUAL PROPERTY RIGHTS,” “USER REPRESENTATIONS,” “USER REGISTRATION,” “PROHIBITED ACTIVITIES,” “USER GENERATED CONTRIBUTIONS,” “CONTRIBUTION LICENSE,”“MOBILE APPLICATION LICENSE,” “SUBMISSIONS,” “SITE AND SERVICES MANAGEMENT,” “PRIVACY POLICY,” “MODIFICATIONS AND INTERRUPTIONS,” “GOVERNING LAW,” “DISPUTE RESOLUTION,” “CORRECTIONS,” “DISCLAIMER,” “LIMITATION ON LIABILITY,” “INDEMNIFICATION AND RELEASE,” “USER DATA,” “ELECTRONIC COMMUNICATIONS,” AND “MISCELLANEOUS.” For the purposes of these Terms, all references to Site and Services therein shall refer to the Fever Free Application as appropriate, and all references to the Site and Services therein shall refer to the Fever Free Services (as defined herein), as appropriate.
Please read these Terms and our Privacy Policy (https://upwards.com/privacy) (“Privacy Policy”) carefully because they govern your use of the Fever Free Application and the functionality made available to you via the Fever Free Application (the “Fever Free Services”) offered by Upwards.
The Fever Free Application enables end users (“Users”) designated by a third-party which has entered into an agreement with Upwards to have access to the Fever Free Services (“Providers”) to share certain information with the Provider via the Fever Free Services. By using the Fever Free Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Fever Free Services. If you are accessing and using the Fever Free Services on behalf of a company (such as your employer) or a Provider or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will refer to that entity.
You may use the Fever Free Services only if you are at least 13 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and not otherwise barred from using the Fever Free Services under applicable law. For certain features of the Fever Free Services you’ll need an account. It’s important that you provide us with accurate, complete and current account information and keep this information up to date. If you don’t, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You’re responsible for all activities that occur under your account.
TERMS SPECIFIC TO USERS
Access to the Fever Free Services
As a User, you have been invited to use and access the Fever Free Services by a Provider, for example, your employer. You acknowledge that your rights to use the Fever Free Services are subject to the Provider’s rights and obligations under these Terms.
Recordings
By using the Fever Free Application and Fever Free Services, you permit us to collect and analyze information about you, including information about how you’re feeling on a particular day and to create video recordings of you, including video recordings of you taking your temperature (the “Recordings”) for the sole purposes of providing the Fever Free Services. You grant us any permissions and consents necessary to permit us to create a Recording of you and to use your name, image and likeness contained in such Recording for the sole purposes of providing the Fever Free Services. You acknowledge and agree that we are permitted to and may make those Recordings available to Authorized Users of your Provider.
The Fever Free Services may also provide you with the opportunity to create, submit, and display Contributions via the functionality of the Fever Free Services. You acknowledge and agree that we are permitted to and may make those Contributions available to Authorized Users of your Provider.
Any use of the Fever Free Services in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Fever Free Services.
Term and Termination
These Terms shall remain in full force and effect while you use the Fever Free Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE FEVER FREE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY COVENANT CONTAINED IN THESE TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE FEVER FREE SERVICES OR DELETE YOUR ACCOUNT AND ANY OF YOUR CONTRIBUTIONS AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
TERMS SPECIFIC TO PROVIDERS
Access to the Fever Free Services
Subject to the terms and conditions of these Terms, Upwards hereby grants Provider a limited, non-exclusive, non-transferable right to use the Fever Free Services and functionality available therein during the Services Term (as defined herein), including the data analysis and reporting therein, solely for Provider’s internal use and purposes.
Authorized Users
Provider will authorize certain employees or Provider’s independent contractors to use the Fever Free Services on Provider’s behalf (each, an “Authorized User”). Provider will not allow any person other than Authorized Users to access or use the Fever Free Services. Provider may permit Authorized Users to access the Fever Free Services, provided that (i) Provider ensures each Authorized User complies with all applicable terms and conditions of these Terms and Provider is responsible for acts or omissions by Authorized Users in connection with their use of the Fever Free Services. Provider will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Fever Free Services in accordance with customary security protocols, and will promptly notify Upwards if Provider knows or reasonably suspects that any user name and/or password has been compromised.
Fees & Payment
Provider will pay Upwards the non-refundable fees (“Fees”) in accordance with the terms as mutually agreed by the Provider and Upwards.
Term and Termination
As between Upwards and Provider, these Terms shall remain in full force and effect while you use the Fever Free Services unless otherwise terminated by either Upwards or Provider.
FEVER FREE ADDITIONAL DISCLAIMERS
THE FEVER FREE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL CARE. YOU UNDERSTAND AND AGREE THAT THE FEVER FREE SERVICES ARE NOT INTENDED, DESIGNED, OR IMPLIED TO DIAGNOSE, PREVENT, OR TREAT ANY CONDITION OR DISEASE, TO ASCERTAIN THE STATE OF YOUR HEALTH, OR TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL CARE. WHILE THE FEVER FREE SERVICES ARE NOT SUBJECT TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), UPWARDS HAS IMPLEMENTED CONTROLS TO SAFEGUARD USER DATA, INCLUDING ANY HEALTH-RELATED INFORMATION PROVIDED BY THE USER.
IN ADDITION TO THE ABOVE, UPWARDS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE RECORDINGS, CONTRIBUTIONS OR OTHER INFORMATION IN OR PROVIDED BY USERS AND PROVIDERS VIA THE FEVER FREE SERVICES IS COMPLETE, EXHAUSTIVE, RELIABLE, CURRENT OR ACCURATE.
Military Childcare Assistance
