Terms of Use Agreement
Welcome to our Web site. By using our site, you are agreeing to
comply with and be bound by the following terms of use. Please review
the following terms carefully. If you do not agree to these terms, you
should not use this site. The term “MyDayCareSoftware.com”
or “us” or
“we” or “our” refers to David Meindl, the owner of the Web site.
The term “you” refers to the user or viewer of our Web Site.
1. Acceptance of Agreement.
You agree to the terms and conditions outlined in this Terms of Use
Agreement ("Agreement") with respect to our site (the "Site"). This
Agreement constitutes the entire and only agreement between us and you,
and supersedes all prior or contemporaneous agreements,
representations, warranties and understandings with respect to the
Site, the content, products or services provided by or through the
Site, and the subject matter of this Agreement. This Agreement may be
amended at any time by us from time to time without specific notice to
you. The latest Agreement will be posted on the Site, and you should
review this Agreement prior to using the Site.
2. Copyright.
The content, organization, graphics, design, compilation, magnetic
translation, digital conversion and other matters related to the Site
are protected under applicable copyrights, trademarks and other
proprietary (including but not limited to intellectual property)
rights. The copying, redistribution, use or publication by you of any
such matters or any part of the Site, except as allowed by Section 4
below, is strictly prohibited. You do not acquire ownership rights to
any content, document or other materials viewed through the Site. The
posting of information or materials on the Site does not constitute a
waiver of any right in such information and materials. Some of
the content on the site is the copyrighted work of third parties.
3. Service Marks.
"MyDayCareSoftware.com" and others are our service marks or
registered
service marks or trademarks. Other product and company names
mentioned on the Site may be trademarks of their respective owners.
4. Limited License; Permitted Uses.
You are granted a non-exclusive, non-transferable, revocable license
(a) to access and use the Site strictly in accordance with this
Agreement; (b) to use the Site solely for internal, personal,
non-commercial purposes; and (c) to print out discrete information from
the Site solely for internal, personal, non-commercial purposes and
provided that you maintain all copyright and other policies contained
therein. No print out or electronic version of any part of the
Site or its contents may be used by you in any litigation or
arbitration matter whatsoever under any circumstances.
5. Restrictions and Prohibitions on Use.
Your license for access and use of the Site and any information,
materials or documents (collectively defined as “Content and
Materials”) therein are subject to the following restrictions and
prohibitions on use: You may not (a) copy, print (except for the
express limited purpose permitted by Section 4 above), republish,
display, distribute, transmit, sell, rent, lease, loan or otherwise
make available in any form or by any means all or any portion of the
Site or any Content and Materials retrieved therefrom; (b) use the Site
or any materials obtained from the Site to develop, of as a component
of, any information, storage and retrieval system, database,
information base, or similar resource (in any media now existing or
hereafter developed), that is offered for commercial distribution of
any kind, including through sale, license, lease, rental, subscription,
or any other commercial distribution mechanism; (c) create
compilations or derivative works of any Content and Materials from the
Site; (d) use any Content and Materials from the Site in any manner
that may infringe any copyright, intellectual property right,
proprietary right, or property right of us or any third parties; (e)
remove, change or obscure any copyright notice or other proprietary
notice or terms of use contained in the Site; (f) make any portion of
the Site available through any timesharing system, service bureau, the
Internet or any other technology now existing or developed in the
future; (g) remove, decompile, disassemble or reverse engineer any Site
software or use any network monitoring or discovery software to
determine the Site architecture; (h) use any automatic or manual
process to harvest information from the Site; (i) use the Site for the
purpose of gathering information for or transmitting (1) unsolicited
commercial email; (2) email that makes use of headers, invalid or
nonexistent domain names, or other means of deceptive addressing; and
(3) unsolicited telephone calls or facsimile transmissions; (j) use the
Site in a manner that violates any state or federal law regulating
email, facsimile transmissions or telephone solicitations; and (k)
export or re-export the Site or any portion thereof, or any software
available on or through the Site, in violation of the export control
laws or regulations of the United States.
6. Forms, Agreements & Documents
We may make available through the Site or through other Web sites
published documents such as books, ebooks, articles, forums, and
software (collectively, “Documents”). All Documents are provided
on a non-exclusive license basis only for your personal one-time use
for non-commercial purposes, without any right to re-license,
sublicense, distribute, assign or transfer such license. Some
documents are provided for a charge and without any representations or
warranties, express or implied, as to their suitability, completeness,
currentness, accuracy, and/or appropriateness. THE DOCUMENTS ARE
PROVIDED “AS IS”, “AS AVAILABLE”, AND WITH “ALL FAULTS”, AND WE AND ANY
PROVIDER OF THE DOCUMENTS DISCLAIM ANY WARRANTIES, INCLUDING BUT NOT
LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. The Documents may be inappropriate for your
particular circumstances.
7. Linking to the Site.
You may provide links to the Site, provided (a) that you do not remove
or obscure, by framing or otherwise, advertisements, the copyright
notice, or other notices on the Site, (b) your site does not engage in
illegal or pornographic activities, and (c) you discontinue providing
links to the Site immediately upon request by us.
8. Advertisers.
The Site may contain advertising and sponsorships. Advertisers and
sponsors are responsible for ensuring that material submitted for
inclusion on the Site is accurate and complies with applicable
laws. We are not responsible for the illegality or any error,
inaccuracy or problem in the advertiser's or sponsor's materials.
9. Registration.
Certain sections of, or offerings from, the Site may require you to
register. If registration is requested, you agree to provide us
with accurate, complete registration information. Your
registration must be done using your real name and accurate
information. Each registration is for your personal use only and
not on behalf of any other person or entity. We do not permit (a) any
other person using the registered sections under your name; or (b)
access through a single name being made available to multiple users on
a network. You are responsible for preventing such unauthorized
use.
10. Errors, Corrections and Changes.
We do not represent or warrant that the Site will be error-free, free
of viruses or other harmful components, or that defects will be
corrected. We do not represent or warrant that the information
available on or through the Site will be correct, accurate, timely or
otherwise reliable. We may make changes to the features,
functionality or content of the Site at any time. We reserve the
right in our sole discretion to edit or delete any documents,
information or other content appearing on the Site.
11. Third Party Content.
Third party content may appear on the Site or may be accessible via
links from the Site. We are not responsible for and assume no
liability for any mistakes, misstatements of law, defamation,
omissions, falsehood, obscenity, pornography or profanity in the
statements, opinions, representations or any other form of content on
the Site. You understand that the information and opinions in the
third party content represent solely the thoughts of the author and is
neither endorsed by nor does it necessarily reflect our belief.
12. Unlawful Activity.
We reserve the right to investigate complaints or reported violations
of this Agreement and to take any action we deem appropriate, including
but not limited to reporting any suspected unlawful activity to law
enforcement officials, regulators, or other third parties and
disclosing any information necessary or appropriate to such persons or
entities relating to your profile, email addresses, usage history,
posted materials, IP addresses and traffic information.
13. Indemnification.
You agree to indemnify, defend and hold us and our partners, agents,
officers, directors, employees, subcontractors, successors, assigns,
third party suppliers of information and documents, attorneys,
advertisers, product and service providers, and affiliates
(collectively, "Affiliated Parties") harmless from any liability, loss,
claim and expense, including reasonable attorney's fees, related to
your violation of this Agreement or use of the Site.
14. Nontransferable.
Your right to use the Site is not transferable or assignable. Any
password or right given to you to obtain information or documents is
not transferable or assignable.
15. Disclaimer.
THE INFORMATION, CONTENT AND DOCUMENTS FROM OR THROUGH THE SITE ARE
PROVIDED "AS-IS," "AS AVAILABLE," WITH “ALL FAULTS”, AND ALL
WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT
LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION AND SERVICES MAY
CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR
AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY
INFORMATION OR SERVICE, EXCEPT AS PROVIDED IN SECTION 17(b). IN
PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED
PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF
PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT,
BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR
OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL
ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SITE AND
THE PRODUCTS, SERVICES, DOCUMENTS AND INFORMATION PRESENTED WOULD NOT
BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER
ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE OR OTHERWISE
SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY
STATED IN THIS AGREEMENT.
ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES
CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS
DISCLAIMED.
16. Limitation of Liability
(a) We and any Affiliated Party shall not be liable
for any loss, injury, claim, liability, or damage of any kind resulting
in any way from (a) any errors in or omissions from the Site or
any services or products obtainable therefrom, (b) the
unavailability or interruption of the Site or any features thereof, (c)
your use of the Site, (d) the content contained on the Site, or (e) any
delay or failure in performance beyond the control of a Covered Party.
(b) THE AGGREGATE LIABILITY OF US AND THE AFFILIATED
PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE
SITE AND/OR THE PRODUCTS, INFORMATION, DOCUMENTS AND SERVICES PROVIDED
HEREIN OR HEREBY SHALL NOT EXCEED $100 AND THAT AMOUNT SHALL BE IN LIEU
OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST US AND ANY AFFILIATED
PARTY.
17. Use of Information.
We reserve the right, and you authorize us, to the use and assignment
of all information regarding Site uses by you and all information
provided by you in any manner consistent with our Privacy Policy. All
remarks, suggestions, ideas, graphics, or other information
communicated by you to us (collectively, a "Submission") will forever
be our property. We will not be required to treat any Submission as
confidential, and will not be liable for any ideas (including without
limitation, product, service or advertising ideas) and will not incur
any liability as a result of any similarities that may appear in our
future products, services or operations. Without limitation, we will
have exclusive ownership of all present and future existing rights to
the Submission of every kind and nature everywhere. We will be entitled
to use the Submission for any commercial or other purpose whatsoever,
without compensation to you or any other person sending the Submission.
You acknowledge that you are responsible for whatever material you
submit, and you, not us, have full responsibility for the message,
including its legality, reliability, appropriateness, originality, and
copyright.
18. Third-Party Services.
We may allow access to or advertise certain third-party product or
service providers ("Merchants") from which you may purchase certain
goods or services. You understand that we do not operate or control the
products or services offered by Merchants. Merchants are responsible
for all aspects of order processing, fulfillment, billing and customer
service. We are not a party to the transactions entered into between
you and Merchants. You agree that use of or purchase from such
Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY
US, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE,
FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO
CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE
TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING
ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE.
19. Third-Party Merchant Policies.
All rules, policies (including privacy policies) and operating
procedures of Merchants will apply to you while on any Merchant sites.
We are not responsible for information provided by you to Merchants. We
and the Merchants are independent contractors and neither party has
authority to make any representations or commitments on behalf of the
other.
20. Privacy Policy.
Our Privacy Policy, as it may change from time to time, is a part of
this Agreement. You must review this Privacy Policy by clicking
on this link.
21. Payments.
You represent and warrant that if you are purchasing something from us
or from Merchants that (i) any credit information you supply is true
and complete, (ii) charges incurred by you will be honored by your
credit card company, and (iii) you will pay the charges incurred by you
at the posted prices, including any applicable taxes.
22. Securities Laws.
The Site may include statements concerning our operations, prospects,
strategies, financial condition, future economic performance and demand
for our products or services, as well as our intentions, plans and
objectives (particularly with respect to product and service
offerings), that are forward-looking statements. These statements are
based upon a number of assumptions and estimates which are subject to
significant uncertainties, many of which are beyond our control. When
used on our Site, words like "anticipates," "expects," "believes,"
"estimates," "seeks," "plans," "intends," "will" and similar
expressions are intended to identify forward-looking statements
designed to fall within securities law safe harbors for forward-looking
statements. The Site and the information contained herein does not
constitute an offer or a solicitation of an offer for sale of any
securities. None of the information contained herein is intended to be,
and shall not be deemed to be, incorporated into any of our
securities-related filings or documents.
23. Links to other Web Sites.
The Site contains links to other Web sites. We are not responsible for
the content, accuracy or opinions express in such Web sites, and such
Web sites are not investigated, monitored or checked for accuracy or
completeness by us. Inclusion of any linked Web site on our Site does
not imply approval or endorsement of the linked Web site by us. If you
decide to leave our Site and access these third-party sites, you do so
at your own risk.
24. Copyrights and Copyright Agents.
We respect the intellectual property of others, and we ask you to do
the same. If you believe that your work has been copied in a way that
constitutes copyright infringement, please provide our Copyright Agent
the following information:
a. An electronic or physical signature of the person
authorized to act on behalf of the owner of the copyright interest;
b. A description of the copyrighted work that you
claim has been infringed;
c. A description of where the material that you claim
is infringing is located on the Site;
d. Your address, telephone number, and email address;
e. A statement by you that you have a good faith
belief that the disputed use is not authorized by the copyright owner,
its agent, or the law; and
f. A statement by you, made under penalty of perjury,
that the above information in your Notice is accurate and that you are
the copyright owner or authorized to act on the copyright owner's
behalf.
Our Copyright Agent for Notice of claims of copyright infringement on
the Site can be reached by directing an e-mail to the Copyright Agent
at info@MyDayCareSoftware.com
25. Information and Press Releases.
The Site contains information and press releases about us. We disclaim
any duty or obligation to update this information or any press
releases. Information about companies other than ours contained in the
press release or otherwise, should not be relied upon as being provided
or endorsed by us.
26. Legal Compliance.
You agree to comply with all applicable domestic and international
laws, statutes, ordinances and regulations regarding your use of the
Site and the Content and Materials provided therein.
27. Refund and Return Policy.
To the extent that you purchase any goods or services directly from us,
we will refund you your purchase price within 30 days of you notifying
us in writing of your desire for the refund, together with the reason
for the request, when such request is made within the specified number
of days from the purchase date, with the product or service returned to
us in substantially the same condition as when purchased. Please note ,
however, that certain products and services mentioned on our site are
sold by third parties or are linked to third party Web sites, and we
have no responsibility or liability for those products or services. You
may request a refund by contacting us by email at
info@mydaycaresoftware.com. You may obtain any
additional
information concerning our refund and return policy, including our
mailing address, by contacting us at info@mydaycaresoftware.com.
28. Miscellaneous.
This Agreement shall be treated as though it were executed and
performed in Cedar Falls, Iowa, and shall be governed by and construed
in accordance with the laws of the State of Iowa (without regard to
conflict of law principles). Any cause of action by you with respect to
the Site (and/or any information, Documents, products or services
related thereto) must be instituted within one (1) year after the cause
of action arose or be forever waived and barred. All actions shall be
subject to the limitations set forth in Section 16 and Section 17. The
language in this Agreement shall be interpreted as to its fair meaning
and not strictly for or against any party. This Agreement and all
incorporated agreements and your information may be automatically
assigned by us in our sole discretion to a third party in the event of
an acquisition, sale or merger. Should any part of this Agreement
be held invalid or unenforceable, that portion shall be construed
consistent with applicable law and the remaining portions shall remain
in full force and effect. To the extent that anything in or associated
with the Site is in conflict or inconsistent with this Agreement, this
Agreement shall take precedence. Our failure to enforce any provision
of this Agreement shall not be deemed a waiver of such provision nor of
the right to enforce such provision. Our rights under this
Agreement shall survive any termination of this Agreement.
29. Arbitration.
Any legal controversy or legal claim arising out of or relating to this
Agreement or our services, excluding legal action taken by us to
collect or recover damages for, or obtain any injunction relating to,
Site operations, intellectual property, and our services, shall be
settled solely by binding arbitration in accordance with the commercial
arbitration rules of JAMS. Any such controversy or claim shall be
arbitrated on an individual basis, and shall not be consolidated in any
arbitration with any claim or controversy of any other party. The
arbitration shall be conducted in San Francisco, California, and
judgment on the arbitration award may be entered into any court having
jurisdiction thereof. Either you or us may seek any interim or
preliminary relief from a court of competent jurisdiction in San
Francisco, California necessary to protect the rights or property of
you and us pending the completion of arbitration. Each party
shall bear one-half of the arbitration fees and costs incurred through
JAMS.
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