1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms will have the meaning ascribed below:
a) “ Authorized Users ” means employees of Customer who are properly provided access to the Services per the terms of the online purchase made by Customer.
b) “ Content ” means any information, materials, data, text, images or other content that is submitted or otherwise processed via the Services in connection with Customer’s use of the Services (including use by Authorized Users).
c) “ Customer ” means the entity on behalf of which the person enters into this Agreement, together with all employees and affiliates of such entity.
d) “ Mobile App ” means the current version of the mobile application made available by DaySmart through the Apple App Store or Google Play that enables access to and use of the Services.
e) “ Optional Features ” means any optional, add-on service offerings that are offered for purchase separately from the Software (on a one-time or subscription basis), by DaySmart and that may be used in connection with the Services or Software. Optional Features may include products supplied by third parties. Optional Features may include online booking, remote access, Demandforce tools, online backup, text messaging and email messaging.
f) “ Services ” means any or all of the Software, products and/or hosted services provided by DaySmart and its licensors and suppliers to Customer under this Agreement, including Optional Features and the Mobile Application.
g) “ Software ” means the client management software selected by Customer and provided by DaySmart to Customer under this Agreement, including any updates or upgrades thereto that are made available by DaySmart to Customer. During the online checkout process, Customer will indicate whether it will license the Software to be locally installed on Customer’s hardware (the “On-Premise Software”) or subscribe to access and use the Software as part of DaySmart’s cloud-based software as a service product (the “SaaS Platform”).
2. SCOPE. This Agreement applies to Customer’s and its Authorized Users’ access to and use of any Services. In addition, each Authorized User that downloads and installs the Mobile App will agree to the terms and conditions governing use of the Mobile App, which terms and conditions will prevail with respect to use of the Mobile App by the applicable Authorized User in the event of a conflict between such terms and conditions and the terms and conditions herein. DaySmart reserves the right, in its sole discretion, to change, update or enhance the Services at any time. DaySmart may add or remove functionalities or features and may suspend or stop all or a portion of the Services.
3. ON-PREMISE SOFTWARE LICENSE. If Customer licenses the On-Premise Software, the following provision shall apply:
a) CUSTOMER LICENSE. Subject to the terms of this Agreement and receipt of the required payment by Customer, DaySmart hereby grants to Customer a limited, non-exclusive, non-transferable, revocable, and non-sublicensable license to download, install and use the On-Premise Software in binary executable (object code) form only on servers operated and managed by or on behalf of Customer, solely for its internal business purposes during the applicable subscription period purchased by Customer. Customer will comply with applicable laws and any restrictions, including any limitations on the number of Authorized Users it may allow to access and use the On-Premise Software on its behalf.
b) INSTALLATION SERVICES. Except as otherwise provided in a separate service or maintenance agreement between the parties, Customer shall be solely responsible for its installation and use of the On-Premise Software, and DaySmart shall have no obligation or responsibility with respect thereto.
c) RECORDKEEPING AND ACCESS. Customer agrees to maintain reasonable records with respect to its installation and use of the On-Premise Software, including without limitation records identifying the computer on which the On-Premise Software is installed from time to time and identifying all individuals having access to the On-Premise Software, and to retain all such records for a period of at least six (6) years from the date of their creation. Customer shall make such records and the computer on which the On-Premise Software is installed available for inspection by DaySmart or its representatives at any time during normal business hours upon request. Customer shall promptly pay DaySmart additional license fees at DaySmart’s then current rates for any reproduction, installation, use or distribution of the On-Premise Software in excess of the rights purchased by Customer. Customer shall also pay DaySmart its expenses for any such inspection which discloses underpayment of amounts due to DaySmart greater than ten percent (10%) of the Fees payable under this Agreement.
4. SAAS PLATFORM SUBSCRIPTION. If Customer has purchased the right to use the SaaS Platform, as hosted by or on behalf of DaySmart, the following provisions shall apply:
a) ACCESS GRANT. Subject to the terms of this Agreement and receipt of the required payment by Customer, DaySmart hereby grants to Customer a limited, non-exclusive, non-transferable, revocable, and non-sublicensable right to access and use the SaaS Platform for its internal business purposes during the applicable subscription period purchased by Customer. Customer will comply with applicable laws and any restrictions, including any limitations on the number of Authorized Users it may allow to access and use the SaaS Platform on its behalf.
5. RESTRICTIONS. Without limiting any other provision of this Agreement, Customer will not do, or authorize or permit any third party to do, any of the following: (a) modify, translate, copy, adapt, reverse engineer (except to the extent applicable laws specifically prohibit such restriction), decompile, disassemble, or create derivative works based on the Services; (b) access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (c) allow unauthorized third party access to the Services; (d) attempt to gain unauthorized access to the Services or any other DaySmart customer’s account; (e) use the Services in any manner that is not in accordance with this Agreement, applicable documentation and all applicable laws; (f) resell, rent, lease, distribute, timeshare, use as a service bureau, grant a security interest in, transfer rights to, or make available the Services to any third party; (g) use the Services to build a competitive product or service or to benchmark with a third-party product or service; (h) interfere with or disrupt servers or networks used by DaySmart to provide the Services, or harass or interfere with another customer’s full use and enjoyment of the Services; (i) cause, in DaySmart’s sole discretion, inordinate burden on the Services or DaySmart’s system resources or capacity; or (j) remove any proprietary notices or labels displayed in the Services or on its output.
7. SENSITIVE DATA. Customer acknowledges and agrees that the Services are not suitable for hosting or processing any Sensitive Personal Information. “Sensitive Personal Information” means any personal information that: (a) must be protected in accordance with specific or heightened security requirements imposed by applicable law or industry standards; or (b) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure. Examples of Sensitive Personal Information include, but are not limited to, government-issued identification numbers (such as driver’s license numbers or Social Security numbers), financial account numbers, payment card data, and protected health information (“PHI”) as defined by the Health Insurance Portability and Accountability Act. Customer will ensure that no Sensitive Personal Information is hosted or otherwise processed via the Services, and will indemnify DaySmart for any liability associated with any Sensitive Personal Information collected by Customer in accordance with the terms of Section 19.
8. CUSTOMER’S ACCOUNT. When registering to use the Services, Customer must: (a) provide true, accurate, current and complete information regarding Customer’s and Customer’s Authorized Users’ login, password, account information and other relevant information (the “Registration Data“); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Customer will not allow any account password to be used by more than one individual. Customer must keep its account credentials secure and protect its account from unauthorized access and use. Customer is responsible for managing access privileges for any Authorized User who may access the Services on its behalf. Customer shall be responsible for all access and use of the Services under its account, and for its Authorized Users’ compliance with the terms of this Agreement and any additional terms set forth in Customer’s online purchase. Customer will immediately notify DaySmart of any unauthorized access or use of Customer’s account. Customer must immediately notify DaySmart of any unauthorized access or use of Customer’s account.
9. OWNERSHIP. Except as expressly set forth herein, DaySmart and its licensors and suppliers shall retain all title, rights and interest in and to the Services. Customer acknowledges and agrees that the copyright, patent, trademark, trade secret, and all other intellectual property rights of whatever nature in the Services are and shall remain the property of DaySmart and its licensors and suppliers, as applicable, and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer other than the limited license granted herein.
a) User Data and Client Data . In connection with Customer’s and Customer’s clients’ access and use of the Services, DaySmart may collect information from or about: (a) Customer and its authorized users, including the Registration Data and other information collected from or about Customer’s and its Authorized Users’ computers and devices (“User Data“); and (b) Customer’s clients, including client information submitted by Customer via the Services and information collected from Customer’s clients and their computers or devices (“Client Data“). User Data and Client Data are deemed Content under this Agreement. Customer is solely responsible for collecting, using and disclosing Client Data in accordance with applicable law. Without limiting the foregoing, Customer will provide any notices (including publishing any required privacy policies on Customer’s websites), and obtain any consents, as required under applicable law in connection with Customer’s and DaySmart’s collection, use and disclosure of Client Data.
11. CUSTOMER CONTENT.
a) Rights. Customer hereby grants DaySmart a non-exclusive, royalty-free, fully paid up, sublicensable, fully transferable license to reproduce, create derivative works of, distribute, publicly display, modify or otherwise use the Content for any business purpose, including but not limited to, the creation of benchmarks, to operate and improve the Services, to develop new products and services, and to supply to third parties for marketing and other business purposes. Customer represents and warrants that (i) it has all the rights in the Content necessary to grant the foregoing license, and (ii) the Content does not infringe or violate any applicable law, intellectual property rights or any other rights of any person.
a) Fees . Customer will pay the fees applicable for the Services (“Fees“) as specified on DaySmart’s website. The price stated for the Services excludes all taxes and any other governmental or third party charges, unless stated otherwise. Customer is responsible for any taxes and for all other charges or third party fees incidental to using the Services (for example, third-party data charges). Customer must let DaySmart know of any disputed charges within sixty (60) days after the date of receipt of such invoice or charge. DaySmart will notify Customer in advance, either through the Services or to an administrator’s email address, if DaySmart changes the price of the Services. Customer’s continued use of the Service after the price change becomes effective constitutes Customer’s agreement to pay the changed amount. If Customer does not agree to these price changes, it must cancel and stop using the Services. Any cancellation for this reason will be effective upon expiration of the current billing period for the Services.
b) Payment . Customer will pay the Fees using a valid payment method, acceptable to DaySmart in its sole discretion. Customer represents and warrants that it is authorized to use any payment method it selects to pay the Fees. Customer hereby authorizes DaySmart or its third party designee to charge Customer’s designated payment method for the total amount of Fees, including any applicable taxes and other charges described via the Services. If the payment method cannot be verified, is invalid or is otherwise not acceptable to DaySmart, DaySmart may suspend the Services or terminate this Agreement in its sole discretion. Certain of the Services are offered on a subscription basis with auto-renewing payments (“Subscription Services“). The billing period for each type of Subscription Service will be as specified via the Services at the time of registration. When Customer registers for any Subscription Service, it expressly acknowledges and agrees that (i) DaySmart (or its designated third-party payment processor) is authorized to charge Customer’s payment method on a recurring basis for the Subscription Service (in addition to any applicable taxes and other charges) at the then-current rates for as long as the Subscription Service continues, and (ii) the Subscription Service will continue until Customer cancels it as set forth pursuant to Section 14 below or DaySmart suspends or stops providing access to the Services.
c) Trials . DaySmart may offer certain limited trial period access to Subscription Services without charge. The last day of the trial period signifies the due date of the first payment of Fees for the Subscription Service. Use of the Services during the trial period is subject to this Agreement, regardless of payment or non-payment by Customer. Notwithstanding any other provision of this Agreement, DaySmart provides any trial Services, (i) free of charge and without support and (ii) “AS IS” without indemnification or warranty of any kind. Also, certain features or services may not be available in connection with such trial Services.
13. SUSPENSION. DaySmart reserves the right to suspend Customer’s access to the Services at any time in DaySmart’s sole discretion if DaySmart believes Customer is or is likely to be in breach of the terms of this Agreement or if DaySmart deems reasonably necessary to protect the Services, DaySmart’s customers, or DaySmart’s networks and computer systems.
14. TERM; TERMINATION. This Agreement commences upon Customer’s use of the Services and shall remain in full force until terminated in accordance with this Section.
a) Termination by DaySmart . DaySmart may terminate this Agreement immediately upon notice to Customer if (1) Customer breaches any term of this Agreement; or (2) any of the following take place: (i) Customer makes any general assignment or general arrangement for the benefit of its creditors; (ii) the filing of a petition to have Customer adjudged bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; (iii) the appointment of a trustee or receiver to take possession of substantially all of Customer’s assets or interest in this Agreement; or (iv) the attachment, execution or other judicial seizure of substantially all of Customer’s assets or interest in this Agreement. DaySmart may terminate the Agreement at any time upon 30 days advance written notice to Customer.
b) Termination by Customer. To cancel any Subscription Service, Customer must contact DaySmart through the online help center (http://support.daysmart.com/) and follow the instructions in the email DaySmart sends in response to the cancellation request. Customer must cancel a Subscription Service before the start of the next billing period in order to avoid charges for the next billing period’s Fees. Following any cancellation, Customer will continue to have access to the Subscription Services (subject to the terms of this Agreement) through the end of Customer’s current billing period. Prepaid fees for the billing period during which cancellation notice is received will not be refunded and usage fees will continue to accrue from the date of cancellation through the end of the billing period. Except as specifically set forth in the Services, all Fees are prepaid for the designated subscription period and are non-refundable
c) Effect of Termination . Any rights and licenses granted to Customer under this Agreement will terminate immediately upon termination of this Agreement. Termination shall not relieve Customer’s obligation to pay all Fees which are due and payable as of the date of termination. Sections 1, 3(c), 5, 9, 11, 12, 14, 15, 16, 18, 19 and 21, will survive expiration or termination of this Agreement.
15. DISCLAIMER. DAYSMART PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. NO DEALER, AGENT OR EMPLOYEE OF DAYSMART IS AUTHORIZED TO MAKE ANY OTHER WARRANTY REGARDING THE SERVICES. DAYSMART, AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES, THAT THE SERVICES IS SUITABLE FOR CUSTOMER’S BUSINESS, OR THAT THE SERVICES CAN BE USED BY CUSTOMER IN COMPLIANCE WITH ALL LAWS APPLICABLE TO CUSTOMER’S BUSINESS. DAYSMART AND ITS SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING AS TO TITLE AND NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. ALL CALCULATIONS THAT THE SERVICES PERFORM (INCLUDING, BUT NOT LIMITED TO CALCULATIONS RELATING TO TICKET/SALES INFORMATION, TAXES, CLIENTS, TOTALS, SERVICES, OR PRODUCTS) ARE FOR REFERENCE ONLY, AND SHOULD BE VERIFIED BY MEANS INDEPENDENT OF THE SERVICES. CUSTOMER ASSUMES ENTIRE RISK AS TO THE SELECTION AND SUITABILITY OF THE SERVICES, FOR ITS USE IN ACCORDANCE WITH APPLICABLE LAW, AND FOR THE RESULTS OBTAINED FROM THE SERVICES.
16. LIMITATION OF LIABILITY.
A) UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, WILL DAYSMART OR ITS SUPPLIERS OR RESELLERS HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OR BREACH OF ANY TYPE OF DATA, INCLUDING BUT NOT LIMITED TO PERSONAL DATA, AND/OR OR LOSS OF PROFITS, AND THIRD PARTY CLAIMS AGAINST CUSTOMER EVEN IF DAYSMART HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
B) IN NO EVENT WILL THE AGGREGATE LIABILITY OF DAYSMART ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM.
17. PRODUCT SUPPORT. Although DaySmart may provide voluntary support to Customer in connection with the Services, DaySmart is not obligated to provide such support except for specific technical support purchased pursuant to monthly subscription Fees. The support policies and practices of DaySmart are subject to change without notice or obligation and may be viewed at the following website: www.inkbooktattoosoftware.com/policies/. Customer is solely responsible for incorporating any customer support information provided by DaySmart into its use of the Services and is solely responsible for any consequences thereof.
18. CONFIDENTIAL INFORMATION. In connection with this Agreement, Customer may obtain or receive non-public confidential information of DaySmart, including, but not limited to the Services, software, processes, designs, plans, methods, data, or other non-public information of DaySmart (collectively, “DaySmart’s Confidential Information“). Customer will not use DaySmart’s Confidential Information except to exercise rights granted under this Agreement, and will not disclose DaySmart’s Confidential Information to any third party except to individuals authorized to use the Services on its behalf. Customer will protect DaySmart’s Confidential Information from unauthorized access, use or disclosure, including (without limitation) by requiring its employees, agents, and contractors to enter into written confidentiality obligations at least as strict as those contained in this Agreement. Customer acknowledges that DaySmart’s Confidential Information, regardless of form, is, and will always remain, the sole and exclusive property of DaySmart. Customer further acknowledges that the unauthorized use of DaySmart’s Confidential Information would cause irreparable injury to DaySmart. Consequently, Customer agrees that money damages would not be a sufficient remedy for a breach of this provision, and, in addition to all other remedies to which DaySmart may be entitled, DaySmart will also be entitled to specific performance and injunctive or other equitable relief as remedies for such breach or threatened breach by Customer. Customer agrees that on request or at the termination of this Agreement, Customer will immediately return or destroy, at DaySmart’s discretion, all DaySmart’s Confidential Information and any other related tangible materials to DaySmart without retaining any copies, notes or extracts thereof.
19. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless, DaySmart, and its employees, officers, directors, agents, successors, assigns, representatives and third party contractors (“Indemnitees“) from and against all claims, suits, liabilities, damages, costs, fees, expenses, losses, costs and expenses (including attorneys’ fees) arising out of or resulting from (i) breach of this Agreement by Customer, (ii) Customer’s use of the Services, (iii) any claims or allegations arising from or related to the Content, including any claim that the Content infringes, violates or misappropriates any rights of any third party, including any intellectual property rights or privacy rights; and/or (iv) any data breach affecting Customer and/or Customer’s clients related to use of the Services. DaySmart will have the right to control the defense of any such claim, at Customer’s expense.
20. MODIFICATION. DaySmart reserves the right to change or modify the terms of this Agreement or any other policies related to use of the Services at any time and at its sole discretion. If DaySmart does this, DaySmart will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. DaySmart will also notify Customer of any material changes, either through the Services, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted. Customer’s continued use of the Services following such period constitutes Customer’s acknowledgement and agreement to such changes or modifications.
21. GENERAL TERMS
a) Governing Law . This Agreement shall be governed by the laws of the State of Michigan without regard to its conflict of law principles. All disputes arising under this agreement shall be resolved in the applicable state or federal courts of Michigan. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
b) Integration . This Agreement constitutes the entire understanding of the parties and is intended as the final expression of their agreement. This Agreement supersedes any and all prior agreements, oral or written, expressed or implied, between the parties hereto with respect to the Services and the terms herein.
c) Non-Waiver . No waiver by DaySmart of any breach of any provision hereof shall constitute a waiver of that or any other provision hereof.
d) Force Majeure . DaySmart will not be liable for any failure to perform its obligations arising from circumstances beyond its reasonable control, including, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, Internet service provider failure or delay, or denial of service attack.
e) Notice . Except as otherwise specified in this Agreement, DaySmart will provide any required notices to Customer under this Agreement by email to the email address associated with an administrator account. Customer will provide any required notices to DaySmart under this Agreement by certified mail to DaySmart Software Inc., 3520 Green Ct Suite 250, Ann Arbor, MI 48105. In each case, notice must be in English and will be deemed effective upon receipt.
f) Severability . If any part, term or provision of this Agreement shall be held illegal, unenforceable or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected thereby.
g) Assignment . DaySmart may assign, transfer, or otherwise dispose of its rights and obligations under this Agreement, in whole or in part, at any time without notice to Customer. Customer may not assign this Agreement (whether directly or indirectly, by operation of law, or otherwise) or transfer any rights to use the Services without Customer’s prior written consent.
h) Government Use . If Customer is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Services are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Services are a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Services by the Government will be governed solely by the terms of this Agreement.
i) Export Controls . Customer will comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Customer will not export, or allow the export or re-export of the Services in violation of any such restrictions, laws or regulations. By downloading or using the Services, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.