Terms of Service

Last Updated August 23, 2022

Overview

These LegUp Terms of Service (“Terms”) govern your use of the LegUp Services provided by Kinside, Inc. (“Kinside”, “we”, “us”, “our”), including without limitation our website, web applications, or other digital products that link to or reference these Terms (collectively, the “LegUp Services”). These Terms are a binding legal agreement between you or the entity you represent (“you”) and Kinside. In these Terms, “you” and “your” refer to you, a User of the LegUp Services. A “User” is you or anyone who accesses, browses, or in any way uses the LegUp Services, including parents or legal guardians as referenced in these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SERVICES.
 

PLEASE BE AWARE THAT SECTION 16 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND KINSIDE AMONG OTHER THINGS, SECTION 16 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION.  SECTION 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.  PLEASE READ SECTION 16 CAREFULLY.
 

UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. 
 

ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE APPLICATION WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.

PLEASE BE AWARE THAT SECTION 5 (KINSIDE COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL AND PUSH NOTIFICATION.

Your use of, and participation in, certain LegUp Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms or will be presented to you for your acceptance when you sign up to use the supplemental LegUp Service.  If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such LegUp Service.  The Terms and any applicable Supplemental Terms are referred to herein as the “Agreement”.

This Agreement refers to our privacy policy (“Privacy Policy”), hereby incorporated by reference, which also applies to your use of the LegUp Services and which sets out the terms on which we process any personal data we collect from you, or that you provide to us.

 

Please read this Agreement carefully. Though your access and use of the LegUp Services is governed by this Agreement effective at the time, please note that we may revise and update these Terms from time to time in our sole discretion. If we make material changes to the Agreement, we will notify you by email or by posting a notice on our website prior to the effective date of the changes. We will update the “Last Update” date of this Agreement, and any new Supplemental Terms will be made available from within, or through, the affected LegUp Service. These Terms are to ensure that you will use the LegUp Services only in the ways in which we intend for it to be used. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the LegUp Services.  Otherwise, your continued use of the LegUp Services constitutes your acceptance of such change(s). 



By accessing or using the LegUp Services in anyway, including completing the registration process, browsing the website, or downloading the application:

  • (a) You acknowledge that you have read, understood, and accepted the Agreement and any additional documents or policies referred to in or incorporated into the Agreement, whether you are participating as a guest or as a Registered User (as defined in Section 4);

  • (b) You represent and warrant that you are at least eighteen (18) years of age and have the right, authority, and capacity to enter into this Agreement, either on behalf of yourself or the entity that you represent; and

  • (c) You consent to receive communications from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.

 

If you have any questions at all about this Agreement, please do not hesitate to contact us at info@kinside.com.
 

1. Description of the LegUp Services

Through the LegUp Services, we strive to provide the optimal information for busy parents and legal guardians so they can make the best childcare decisions for their family. By gathering such information, we aim to lighten the load that parents and legal guardians juggle every day. The LegUp Services include Concierge Services, tools, information, and other services for childcare needs of busy parents and legal guardians. Occasionally, we will provide a waitlist service (“Waitlist Service”), which allows busy parents and legal guardians to join waitlists for future enrollments and allows childcare centers and providers to view the demand for their services. We provide the LegUp Services to parents and legal guardians through employers as a childcare benefit to its employees. The LegUp Services provided to employers are subject to the terms and conditions of a separate services agreement. Based on the information provided through the LegUp Services, a representative of LegUp’s Concierge Team will provide concierge services to parents and legal guardians that include but are not limited to (i) searching within the LegUp Services’ childcare providers and centers database for and suggesting potential licensed daycares, preschools, childcare or providers; (ii) calling and asking for availability at a childcare center on behalf of the parent and legal guardian; (iii) connecting families with childcare providers and centers; and (iv) providing general guidance, resources, and Content related to childcare (collectively, the “Concierge Services”). The LegUp Services are currently available in the continental US only.


 

The LegUp Services are not matching or placement services and do not provide, place, or seek to confirm any placements in a childcare center or engagement of a childcare provider and/or centers for any of its Users. Parents or legal guardians are solely responsible for determining which childcare centers or providers best fit the needs of their family, enrolling a child in a childcare center or engaging a childcare provider and/or centers, and confirming proper licensing, researching and deciding suitability of the center or provider, conducting any reference or background checks, and similar assessment and decision making activities. Unless otherwise stated, Kinside makes no representations or warranties about any childcare centers or providers suggested in connection with the LegUp Services.[1] 

 

Note to Kinside: We see that the LegUp website notes “matching” in multiple aspects of their platform (e.g., provider matching, “get matched to care”). Please confirm whether this paragraph aligns with the LegUp Services.

2. Use of the LegUp Services

 

2.1. Services. The LegUp Services are protected by copyright laws throughout the world.  Subject to the Agreement, Kinside grants you a limited license to reproduce portions of the LegUp Services for the sole purpose of using the LegUp Services for your personal or internal business purposes. Unless otherwise specified by Kinside in a separate license, your right to use any and all LegUp Services is subject to the Agreement.   

2.2.Updates.  You understand that the LegUp Services are evolving. You acknowledge and agree that Kinside may update the LegUp Services with or without notifying you. You may need to update third-party software from time to time in order to use the LegUp Services.

2.3.Certain Restrictions. You may use the LegUp Services only for lawful purposes and in accordance with this Agreement. We are under no obligation to enforce the Agreement on your behalf against another User. We encourage you to let us know if you believe another User has violated the Agreement or otherwise engaged in prohibited or illegal conduct.

The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the LegUp Services or any portion of the LegUp Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other services (including images, text, page layout or form) of Kinside; (c) you shall not use any metatags or other “hidden text” using Kinside’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the LegUp Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the LegUp Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the LegUp Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the LegUp Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the LegUp Services; and (h) you shall not attempt to engage in or engage in, any potentially harmful acts that are directed against the LegUp Services, including but not limited to violating or attempting to violate any security features of the LegUp Services, introducing viruses, worms, or similar harmful code into the LegUp Services, or interfering or attempting to interfere with use of the LegUp Services by any other User, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the LegUp Services. You agree not to, and will not assist, encourage, or enable others to use the LegUp Services for the foregoing purposes. Any unauthorized use of any LegUp Service terminates the licenses granted by Kinside pursuant to the Agreement.

3. Accessing the LegUp Services

We grant you permission to access and use the LegUp Services subject to the restrictions set out in this Agreement. It is a condition of your use of the LegUp Services that the information you provide is correct, current, and complete. Your use of the LegUp Services is at your own risk. You are responsible for making all arrangements necessary for you to have access to the LegUp Services. We may close your Account, suspend your ability to use certain portions of the LegUp Services, and/or ban you altogether from the LegUp Services for any or no reason, and without notice or liability of any kind.

 

4. Account Registration and Account Security

Some or all of the LegUp Services and certain features or functionalities, may require you to register an Account with us as a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account in the LegUp Services (“Account”), has a valid account on the social networking service (“SNS”) through which the User has connected to the LegUp Services.  When you do, we may ask you to provide certain registration details or other information about yourself. All such information is subject to our Privacy Policy.

 

Once you have an Account, you are responsible for all activities that occur in connection with your Account. You will treat as confidential your Account access credentials and will not disclose it to any third-party. You agree to immediately notify us if you have any reason to believe that your Account credentials have been compromised or if there is any unauthorized use of your Account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your Account in a public space, such as a park or cafe or public library, so that others are not able to view or record your access credentials or other personal information.

 

You may not impersonate someone else to create an Account, create or use an Account for anyone other than yourself, permit anyone else to use your Account, or provide personal information for purposes of Account registration other than your own. In order to ensure we can protect our community of Users and properly administer the LegUp Services, we have the right to disable or close any User’s Account at any time and for any or no reason. You agree not to create an Account or use the LegUp Services if you have been previously removed by Kinside, or if you have been previously banned from any LegUp Services.

 

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Kinside.

 

5. Kinside Communications

5.1. Generally.  By entering into this Agreement or using the LegUp Services, you agree to receive communications from us, including via e-mail, text messages, and/or calls.  You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the LegUp Services, updates concerning new and existing features on the LegUp Services, communications concerning promotions run by us or our third-party partners, and news concerning the Kinside and industry developments.

5.2.Text Messages.  The Kinside mobile messages service (the “Message Service”) allows Users to receive SMS/MMS mobile messages by opting-in. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by this Agreement.  We do not charge for the Message Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider.  Message and data rates may apply.  By enrolling in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the telephone number you specify, and you represent that you are authorized to receive mobile messages at such number.  The messages sent through the Message Service may include system notifications, account updates and/or marketing information, and may be transmitted using an automatic telephone dialing system (“ATDS”) or other automated systems for the selection or dialing of telephone numbers. Your consent to receive mobile messages via an ATDS or other automated system is not required (directly or indirectly) as a condition of purchasing any property, goods or services. Message frequency varies. Text the keyword ‘STOP’ in response to any message you receive through the Message Service to unsubscribe at any time.  When you opt-out, you agree we may send you an opt-out confirmation message.  For Message Service support or assistance, text ‘HELP’ in reply to any message you receive through the Message Service or email us at info@kinside.com. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any ‘STOP’ or ‘HELP’ requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages.  If you change your mobile phone number, you agree to opt-out of the Message Service first.

6. Prohibited Uses

You may use the LegUp Services only for lawful purposes and in accordance with this Agreement. We are under no obligation to enforce the Agreement on your behalf against another User. We encourage you to let us know if you believe another User has violated the Agreement or otherwise engaged in prohibited or illegal conduct. You agree not to, and will not assist, encourage, or enable others to use the LegUp Services:
 

  • For any commercial purpose, except as expressly permitted under this Agreement;

  • To violate any applicable national, regional, federal, state, local, or international law or regulation;

  • To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material which:

    • Contains any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;

    • Infringes any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;

    • Violates or assists in the violation of legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations, or that otherwise may be in conflict with this Agreement and/or our Privacy Policy; or

    • Be likely to deceive or confuse any person;

  • Violate this Agreement or any other rules or policies posted by us on the LegUp Service;

  • Record, process, harvest, collect, or mine information about other Users;

  • Access, retrieve, or index any portion of the LegUp Services for purposes of constructing or populating a searchable database;

  • Use the LegUp Services to violate the security of any computer network, crack passwords or security encryption codes;

  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the LegUp Services, the server on which the LegUp Services is stored, or any server, computer, or database connected to the LegUp Services;

  • Attack the LegUp Services via a denial-of-service attack or a distributed denial-of-service attack; and

  • Otherwise attempt to interfere with the proper working of the LegUp Services.

The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing prior written notice to us info@kinside.com, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.

 

Interactions with Other Users. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, whether or not they are a Registered User; provided, however, that Kinside reserves the right, but has no obligation, to intercede in such disputes.  You agree that Kinside will not be responsible for any liability incurred as the result of such interactions. You agree that you are solely responsible for your conduct in connection with the Kinside Services. You agree that you will abide by this Agreement and will not (and will not attempt to): (a) use the Kinside Services to send messages containing harassment, violence, threats, hate speech, suicide or self-harm, bullying, abuse, spam, illegal activity, obscenity, pornography, defamation, libel, and/or fraud; or (b) upload content that promotes suicide or self-harm, incites hate or violence against others, degrades or doxes another individual, depicts minors in sexually suggestive situations, or is otherwise illegal in the United States.

 

7. Payment

Kinside reserves the right to charge for certain or all LegUp Services. You shall pay all applicable fees, as described on the LegUp Services in connection with the LegUp Services selected by you. Kinside reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the website. Your use of the LegUp Services following such notification constitutes your acceptance of any new or increased charges. Except as set forth in the Agreement, all fees for the LegUp Service are non-refundable.  No contract will exist between you and Kinside for the LegUp Services until Kinside accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

7.1.Waitlist Service. If you choose to signup for the Waitlist Services, Kinside will collect payment information immediately. However, you will not be charged for this service until you have been offered and accepted an open childcare seat from Kinside. When you have accepted a seat offer from Kinside, you will be charged a search and placement fee (the “Waitlist Service Fee”). [1] The Waitlist Service Fee is non-refundable.

 

7.2.LegUp Concierge Service. If you choose to sign up for our Concierge Services, you will be charged a one-time fee based on the number of waitlists you choose to join [2] (the “Concierge Fee”). All Concierge Fees are non-refundable.

 

7.3.Payment Method. Kinside uses a third-party payment processor (the “Payment Processor”), Stripe, Inc., to collect fees through a payment account provided by you. The processing of payments are subject to the Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/us/terms) and hereby consent and authorize Kinside and Stripe to share any information and payment instructions you provide with one or more Payment Processor to the minimum extent required to complete your transactions. . We are not responsible for error by the Payment Processor. By choosing to use the LegUp Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Waitlist Services or Concierge Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (for example, a credit or debit card you provide) (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

 

7.4.Taxes. The payments required for the LegUp Services under this Agreement do not include any Sales Tax that may be due in connection with the LegUp Services provided under this Agreement. If Kinside determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Kinside shall collect such Sales Tax in addition to the payments required for a subscription under this Agreement. If any services or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Kinside, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Kinside for any liability or expense Kinside may incur in connection with such Sales Taxes. Upon Kinside’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

 

8. Ownership

8.1. LegUp Content and IP Ownership. Kinside owns all rights, title and interest in the LegUp Services (including but not limited to, any computer code, concepts, artwork, moral rights, documentation, and Kinside software) and all of our trademarks, logos, branding, and any other Content that we create in connection with the LegUp Services (“LegUp Content”), including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with such LegUp Content and the LegUp Services (collectively, “LegUp IP”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any LegUp Services. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the LegUp IP are retained by us.

We are not responsible or liable to any third-party for the content or accuracy of any materials posted by you or any other User of the LegUp Services. You understand that when using the LegUp Services, you will be exposed to text, images, photos, audio, video, location data, and all other forms of data or communication (“Content”) from a variety of sources, and that Kinside is not responsible for the usefulness, or intellectual property rights of or relating to such Content. We do not endorse any Content made available through the LegUp Services by any User or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with such Content.

8.2. Your Content. 

8.2.1. Responsibility for your Content. Certain types of Users may be able to contribute Content or information within or through the LegUp Services. You understand and acknowledge that you alone are responsible for Content that you submit or transmit to, through, or in connection with the LegUp Services that you publicly display or displayed in your Account (collectively, “Your Content”), and you, not Kinside, assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, reliability, appropriateness, or any disclosure by you of information in Your Content that makes you or anyone else personally identifiable. You represent that you own or have the necessary rights, consents, and permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Kinside. You represent and warrant that Your Content does not violate this Agreement.

8.2.2 Our Right to Use Your Content. Subject to the statements we make regarding protecting certain information in our Privacy Policy, you hereby irrevocably grant us world-wide, perpetual, non-exclusive, fully-paid, royalty-free, assignable, sublicensable, and transferable rights (including any moral rights) to use Your Content (in whole or in part) for purposes of providing the LegUp Services. Please note that you also irrevocably grant the Users of the LegUp Services the right to access Your Content in connection with their use of the LegUp Services. Finally, you irrevocably waive, and cause to be waived, against Kinside and its Users any claims and assertions of moral right or attribution with respect to Your Content. By “use” we mean use, make, have made, sell, offer for sale, import, practice, copy, publicly perform and display, reproduce, perform, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not Kinside, are responsible for all of Your Content that you make available on or in the LegUp Services. We are not and shall not be under any obligation, except as otherwise expressly set forth in this Agreement, Privacy Policy or our other policies, (1) to maintain Your Content in confidence; (2) to pay you any compensation for Your Content; (3) to credit or acknowledge you for Your Content; (4) to respond to Your Content; or (5) to exercise any of the rights granted herein with respect to Your Content.

 

8.2.3. Data Sharing. You reserve and retain all right, title and interest in and to the data that you submits to the LegUp Services (“User Data”) and is the sole and exclusive owner of all intellectual property rights relating thereto. You are solely responsible for any and all obligations with respect to the accuracy, quality and legality of all User Data.  You hereby consent and authorize Kinside to use and share any information you provide to the LegUp Services within Kinside’s services for its internal business purposes.

9. Links to Other Third-Party Services

If there are third-party websites, applications, and resources (“Third-Party Services”) linked to on the LegUp Services, these links are provided only for the convenience of our Users. We have no control over the contents of those Third-Party Services, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the Third-Party Services linked to the LegUp Services, you do so entirely at your own risk and subject to the terms and conditions of use for Third-Party Services. We will not warn you that you have left the LegUp Services. When you leave the LegUp Services, this Agreement and our policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.


 

10. Disclaimer of Warranties

THE KINSIDE PARTIES HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, IMPLIED WARRANTIES, NON-INFRINGEMENT, QUALITY OR FITNESS FOR PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION OR CODE. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE LEGUP SERVICES IS AT YOUR SOLE RISK, AND THE LEGUP SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE KINSIDE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE LEGUP SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE LEGUP SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE LEGUP SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE LEGUP SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE LEGUP SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. KINSIDE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF LEGUP SERVICES.  THIS INCLUDES INFORMATION REGARDING THE AMOUNT AND QUALITY OF RESOURCES PROVIDED BY CHILDCARE PROVIDERS AND/OR CENTERS.  KINSIDE DOES NOT GUARANTEE THAT YOUR REQUESTS WILL BE FULFILLED.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KINSIDE OR THROUGH THE LEGUP SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

 

IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES: (1) CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY,” AND (2) NEW JERSEY RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (X) SECTIONS 15, WHICH STATES, AMONG OTHER THINGS, THAT “NO SELLERS…SHALL IN THE COURSE OF HIS BUSINESS OFFER TO ANY CONSUMER OR PROSPECTIVE CONSUMER OR ENTER INTO ANY WRITTEN CONSUMER CONTRACT OR GIVE OR DISPLAY ANY WRITTEN CONSUMER WARRANTY, NOTICE OR SIGN…WHICH INCLUDES ANY PROVISION THAT VIOLATES ANY CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER OR RESPONSIBILITY OF A SELLER…” AND (X) SECTION 16, WHICH STATES, AMONG OTHER THINGS, THAT “…NO CONSUMER CONTRACT, NOTICE OR SIGN SHALL STATE THAT ANY OF ITS PROVISIONS IS OR MAY BE VOID, UNENFORCEABLE OR INAPPLICABLE IN SOME JURISDICTIONS WITHOUT SPECIFYING WHICH PROVISIONS ARE OR ARE NOT VOID, UNENFORCEABLE OR INAPPLICABLE WITHIN THE STATE OF NEW JERSEY…”. YOU HEREBY WAIVE, AS APPLICABLE, THESE SECTIONS OF THE CALIFORNIA CIVIL CODE AND NEW JERSEY TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.

10.1. Beta Services. From time to time, KINSIDE may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at kinside’s sole discretion. The provisions of this section apply with full force to such features or tools.

10.2. No Liability for Conduct of Third Parties. THE LEGUP SERVICES MERELY ACTS AS A RESOURCE FOR BUSY PARENTS AND/OR LEGAL GUARDIANS TO CONNECT WITH THE LISTED CHILDCARE PROVIDERS, AND DOES NOT DIRECTLY PROVIDE SUCH SERVICES TO THESE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE KINSIDE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE KINSIDE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, OTHER USERS, AND CHILDCARE PROVIDERS AND/OR CENTERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. ANY INTERACTIONS WITH CHILDCARE PROVIDERS AND/OR CENTERS, USERS OR OTHER THIRD PARTIES ARE CONDUCTED AT YOUR OWN RISK.  KINSIDE MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  KINSIDE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES.

10.3. No Liability for Conduct of Other YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE LEGUP SERVICES. YOU UNDERSTAND THAT KINSIDE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE LEGUP SERVICES.  KINSIDE MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, QUALITY, OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE LEGUP SERVICES.  ANY CONTENT RELIED UPON BY YOU IS AT YOUR OWN RISK AND YOU AGREE THAT KINSIDE IS NOT LIABLE FOR ANY INCORRECT OR MISLEADING INFORMATION POSTED BY OTHER USERS (E.G., CHILDCARE PROVIDERS, CHILDCARE CENTERS), INCLUDING INFORMATION REGARDING THE ADDRESS AND OPERATING HOURS OF CHILDCARE providers, OTHER THIRD-PARTY SERVICE PROVIDERS NOT LISTED IN THE LEGUP SERVICES, AND CHILDCARE AVAILABILITY. THE LEGUP SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. 

10.4. No Guarantees of Service or Availability of Childcare.

10.4.1. Regarding The LegUp Services. ALTHOUGH WE HOPE TO MAKE THE LEGUP SERVICES AVAILABLE AT ALL TIMES IN THE FUTURE, THERE MAY BE TIMES WHEN WE NEED TO DISABLE THE LEGUP SERVICES EITHER TEMPORARILY OR PERMANENTLY. THE LEGUP SERVICES MAY BE MODIFIED, UPDATED, INTERRUPTED, SUSPENDED, OR DISCONTINUED AT ANY TIME WITHOUT NOTICE OR LIABILITY. KEEP THIS IN MIND AS KINSIDE WILL NOT BE LIABLE IF ALL OR ANY PART OF THE LEGUP SERVICES IS UNAVAILABLE AT ANY TIME, FOR ANY PERIOD OF TIME. ALSO, FROM TIME TO TIME, WE MAY RESTRICT ACCESS TO SOME PARTS OF THE LEGUP SERVICES, OR THE ENTIRE LEGUP SERVICES, TO USERS, INCLUDING REGISTERED USERS. WE CANNOT AND DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE DEVICES YOU USE TO ACCESS OR USE THE LEGUP SERVICES, INCLUDING WITH RESPECT TO DEVICE COMPATIBILITY.

 

10.4.2. Regarding Childcare Centers. WE USE BEST EFFORTS AND TYPICALLY ARE ABLE TO IDENTIFY POTENTIAL CHILDCARE CENTERS IN MOST LOCATIONS. HOWEVER, WE CANNOT GUARANTEE AVAILABILITY IN ANY GIVEN CHILDCARE CENTER AT A PARTICULAR TIME DUE TO MARKET CONDITIONS OUTSIDE OF OUR CONTROL OR SUGGESTED CHILDCARE CENTERS THAT MEET ALL OF YOUR IDENTIFIED NEEDS. FURTHER, THERE MAY BE LIMITED SITUATIONS WHERE WE ARE UNABLE TO SUGGEST POTENTIAL CHILDCARE CENTERS OR PROVIDERS DUE TO OTHER CIRCUMSTANCES OUTSIDE OF OUR CONTROL.

10.5. Third-Party Materials. As a part of the LegUp Services, you may have access to materials that are hosted by another party.  You agree that it is impossible for Kinside to monitor such materials and that you access these materials at your own risk.

11. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE KINSIDE PARTIES (AS DEFINED BELOW) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE LEGUP SERVICES, WHETHER OR NOT KINSIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE LEGUP SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE LEGUP SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A KINSIDE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A KINSIDE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A KINSIDE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.1.  Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, THE KINSIDE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO KINSIDE by you during the SIX (6) month period prior to the act, omission or occurrence giving rise to such liability; (b) $50; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A KINSIDE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A KINSIDE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A KINSIDE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.2. Content. EXCEPT FOR KINSIDE’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN KINSIDE’S PRIVACY POLICY, KINSIDE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND THIRD-PARTY CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.

11.3. Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

11.4. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KINSIDE AND YOU.

12. Indemnification

You shall indemnify and hold harmless Kinside, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers (collectively, “Kinside Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from (a) your violation of this Agreement, (b) Your Content, (c) your violation of any rights of another party, including any Registered Users, (d) your violation of any applicable laws, rules or regulation, or (e) your use of or inability to use the LegUp Services. Kinside reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kinside in asserting any available defenses. This provision does not require you to indemnify any of the Kinside Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the application or any LegUp Services provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the LegUp Services.

13. Monitoring, Enforcement, and Investigations.

Kinside reserves the right to: (a) monitor or review the LegUp Services and Content, including Your Content, at any time; (b) investigate possible violations by you of any provision of the Agreement; (c) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (d) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that Your Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users of the LegUp Services or the public, or could create liability for Kinside; (e) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (f) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the LegUp Services; and/or (g) terminate or suspend your access to all or part of the LegUp Services for any or no reason, including without limitation, any violation of this Agreement.

 

If Kinside becomes aware of any possible violations by you of the Agreement, Kinside reserves the right to investigate such violations.  If, as a result of the investigation, Kinside believes that criminal activity has occurred, Kinside reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Kinside is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the LegUp Services, including Your Content, in Kinside’s possession in connection with your use of the LegUp Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Kinside, its Registered Users or the public, and all enforcement or other government officials, as Kinside in its sole discretion believes to be necessary or appropriate.

 

14. Term and Termination

 

14.1. Term.  The Agreement commences on the earlier to occur of (a) the date you first used the LegUp Services; or (b) the date when you accept the Agreement (as described in the preamble above) and remain in full force and effect while you use the LegUp Services, unless terminated earlier in accordance with the Agreement.

14.2. Termination of Services.  If you have materially breached any provision of the Agreement, or if Kinside is required to do so by law (e.g., where the provision of the LegUp Services is, or becomes, unlawful), Kinside has the right to, immediately and without notice, suspend or terminate any LegUp Services provided to you.  You agree that all terminations for cause shall be made in Kinside’s sole discretion and that Kinside shall not be liable to you or any third party for any termination of your Account. 

14.3. Effect of Termination.  Termination of any LegUp Service includes removal of access to such LegUp Service and barring of further use of the LegUp Service. Termination of all LegUp Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any LegUp Service, your right to use such LegUp Service will automatically terminate immediately.  You understand that any termination of the LegUp Services may involve deletion of Your Content associated therewith from our live databases.  Kinside will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Agreement which by their nature should survive, shall survive termination of the LegUp Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

 

15. Governing Law

This Agreement shall be governed by the laws of the State of California, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles County, California.

16. Arbitration Agreement

Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Kinside and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

16.1. Applicability of Arbitration Agreement.  Subject to the terms of this Arbitration Agreement, you and Kinside agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the LegUp Services, any communications you receive, any products sold or distributed through the LegUp Services, or the Agreement and prior version of the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Kinside may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Kinside may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement. 
 

16.2. Informal Dispute Resolution.  There may be instances when a Dispute arises between you and Kinside. If that occurs, Kinside is committed to working with you to reach a reasonable resolution.  You and Kinside agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome.  You and Kinside therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”).  If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.  The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing.  Notice to Kinside that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to info@kinside.com or regular mail to our offices located at 912 Cole St, #323, San Francisco, CA 94117. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.  The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.  In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute.  Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration.  The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

16.3. Waiver of Jury Trial.  YOU AND KINSIDE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Kinside are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above.  There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

16.4. Waiver of Class and Other Non-Individualized Relief.  YOU AND KINSIDE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 16.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.  ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim.  Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Kinside agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Los Angeles County in the State of California.  All other Disputes shall be arbitrated or litigated in small claims court.  This subsection does not prevent you or Kinside from participating in a class-wide settlement of claims.

16.5. Rules and Forum.  The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.  If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Kinside agree that either party shall have the right to finally resolve the Dispute through binding arbitration.  The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement.  The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”).  The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.  If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address.  Such counsel must also sign the Request.  By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.  Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside.  Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.  If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.  Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.  You and Kinside agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

16.6. Arbitrator.  The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators.  If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 16.9 (Batch Arbitration)  is triggered, the AAA will appoint the arbitrator for each batch.

16.7. Authority of Arbitrator.  The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The award of the arbitrator is final and binding upon you and us.  Judgment on the arbitration award may be entered in any court having jurisdiction.

16.8. Attorneys’ Fees and Costs.  The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).  If you or Kinside need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration.  The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

16.9. Batch Arbitration.  To increase the efficiency of administration and resolution of arbitrations, you and Kinside agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Kinside by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).  All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.  To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”).  In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly.  The Administrative Arbitrator’s fees shall be paid by Kinside. You and Kinside agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.  This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

16.10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 912 Cole St, #323, San Francisco, CA 94117, within thirty (30) days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, the email address you used to set up your Account, and an unequivocal statement that you want to opt out of this Arbitration Agreement.  If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

16.11. Invalidity, Expiration.  Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.  You further agree that any Dispute that you have with Kinside as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred.  Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

16.12. Modification.  Notwithstanding any provision in the Agreement to the contrary, we agree that if Kinside makes any future material change to this Arbitration Agreement, it will notify you.  Unless you reject the change within thirty (30) days of such change becoming effective by writing to Kinside at: 912 Cole St, #323, San Francisco, CA 94117, your continued use of the LegUp Services, including the acceptance of products and services offered on or through the LegUp Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes.  Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration.  If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the LegUp Services, any communications you receive, any products sold or distributed through the LegUp Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect.  Kinside will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.

17. General Terms

This Agreement, together with the Privacy Policy and any other agreement(s) that govern your use of the LegUp Services, constitute the sole and entire agreement between you and Kinside with respect to the LegUp Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the LegUp Services. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. Further, childcare centers and providers are independent business owners and not employees, partners, representatives, agents, joint venturers, franchisees or independent contractors of Kinside. No waiver of this Agreement by Kinside shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Kinside to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent such that the remaining provisions of the Agreement will continue in full force and effect. Kinside shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. The Agreement, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Kinside’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. This Agreement may be assigned or transferred by Kinside without restriction. Any attempted assignment by you shall violate this Agreement and be void. The section titles in the Agreement are for convenience only and have no legal or contractual effect.

18. Contact

All feedback, comments, requests for technical support, and other communications relating to the LegUp Services should be directed to: support@legup.care. By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development that is owned by us, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Kinside and its Users any claims and assertions of any moral rights contained in such Feedback.

 

You may provide such Feedback by contacting us via email at support@legup.care or by mailing us at the below address:

 

Kinside, Inc.

912 Cole St, #323

San Francisco, CA 94117