Service Agreement and Waiver
THIS AGREEMENT is made by and between Daycare Jumpers, LLC, an Idaho Limited Liability Company, (the "Company") and _____________________________ (the "Customer"), jointly referred to as "parties". Whereas, the Company compiles information regarding the payment history of consumers of daycare services, and provides daycare service providers access to information regarding the payment history of consumers of daycare services. WHEREAS, the Customer is in the business of providing daycare services and desires to provide information to the Company regarding the payment history of certain users of its daycare services, and to gain access to information regarding the payment history of users of daycare services. WHEREAS, the parties are desirous of entering into this Agreement to provide the Customer access to consumer information provided by the Company, and for the provision of consumer information by the Customer, to the Company. IN CONSIDERATION of the terms and conditions contained herein the parties covenant and agree as follows:
1. Provision of Services and Information.
1.1 Company's Services. The Company will provide the Customer access to its database of consumer information regarding the payment history of consumers of daycare services.
1.2 Customer Information. The Customer will provide the Company with information regarding the payment history of consumers of its daycare services.
2. Term of Contract. The Initial Term of this agreement shall be thirty (30) days, commencing on the Effective Date. The Contract shall be automatically extended for a subsequent thirty (30) day term, unless either party provides the other with not less than thirty (30) days written notice, prior to the end of the then current term of the party's intention not to extend the term of the Contract beyond the end of the then current term.
TO THE Company: email@example.com
TO THE Customer: ________________________
7. Relationship of the Parties. It is hereby understood, agreed and declared that the Company shall be an independent contractor and not the agent or employee of the Customer, and that the right to control the particular manner, method and means in which the Company's services are provided is solely within the discretion of the Company. Any and all employees of the Company who provide services to the Customer under this Agreement shall be deemed employees solely of the Company. The Company shall be solely responsible for the conduct and actions of all employees under this Agreement and any liability that may attach thereto. The Customer is not the agent or employee of the company, and the right to control the particular manner, method, means and substance of the information provided to the Company, by the Customer, is solely within the discretion of the Customer. Any and all employees of the Customer who provide information to the Company under this Agreement shall be deemed employees solely of the Customer. The Customer shall be solely responsible for the conduct and actions of all their employees under this Agreement and any liability that may attach thereto.
8. Acknowledgments, Representations and Duties of Customer. The Customer acknowledges that use of the Company's services and the provision of information to the Company may be subject to Rules which include but are not limited to The Fair Credit Reporting Act. Without limitation, the customer acknowledges the following:
8.1 Use of Company's Services. The Customer represents that its use of the Company's service is exclusively for use in connection with credit transactions involving consumers of the Customers’ daycare services, involving the extension of credit to said consumers, or in review or collection of accounts of said consumers. Further, the Customer acknowledges that in provision of consumer information to the Company that it is in accordance with the written instructions of the consumers of the Customer's daycare services.
8.2 Purpose of Use. The Customer represents that each use of the Company's services will be exclusively in connection with a credit transaction initiated by a consumer of the Customer's daycare services, and the Customer agrees to certify each use of the Company's services.
8.3 Discrepancy in Consumer Address. The Customer acknowledges that it is obligated to notify the Company of any discrepancy in a consumer's address or other information pertaining to consumer information it provides to the Company.
8.4 Extension of Credit. The Customer represents that any extension of credit to a daycare service consumer will be in accordance with The Fair Credit Reporting Act.
8.5 Notice to Furnishers of Consumer Information. The Customer acknowledges and represents that it intends to furnish information to the Company regarding consumers of the Customer's daycare services, and that it has read and understands the obligations described in the attached Exhibit A, as they apply to the Customer in its furnishing of information to the Company regarding daycare services.
8.6 Notice to Users of Consumer Information from Company. The Customer acknowledges and represents that it intends to use the Company's services regarding the provision of consumers information, and that it has read and understands the obligations described in the attached Exhibit B, that apply to the Customer where it uses the consumer information provided by the Company.
8.7 Reselling of Company Services. The Customer represents that it will not resell any consumer information obtained from the Company.
8.8 Disclosure of Summary of Consumer Rights. The Customer agrees to disclose to every consumer of its daycare services whose information is furnished to the Company, or whose information it obtains from the Company, a Summary of Rights substantially in the same form as that contained in attached Exhibit C.
8.9 Adverse Consumer Actions. The Customer acknowledges and represents that as a user of the Company's services, the Customer is solely responsible for complying with the requirements of The Fair Credit Reporting Act, where it takes any Adverse Action against a consumer based upon consumer information obtained from the Company.
8.10 Furnishing Consumer Information. The Customer acknowledges that as a user of the Company's services, the Customer is solely responsible for complying with the requirements of The Fair Credit Reporting Act, to furnish accurate consumer information, update consumer information, notify the Company of a consumer dispute, and of the closure of a consumer's account.
9. Claims; Indemnification.
9.1 Indemnification. The Customer unconditionally agrees to indemnify and hold harmless, the Company, for any claim arising from the Customer's failure to adhere to any Rules, which include but are not limited to The Fair Credit Reporting Act. The Customer further unconditionally agrees to indemnify and hold harmless, the Company, for any claims whether based in statute, tort, contract or equity, stemming from this Agreement, the provision of consumer information to the Company, and use of the Company's services and consumer information.
10. LIMITED LIABILITY. The Company's LIABILITY AND THE EXCLUSIVE REMEDY OF the customer FOR DAMAGES ARISING OUT OF OR RELATED TO THE company's SERVICES OR THIS AGREEMENT, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN $10.
11. Waiver. Except as agreed herein or in writing, no officer, employee, agent or other individual acting on behalf of either party has the power, right or authority to waive any of the conditions or provisions of this Agreement. A waiver in one instance shall not be held to be a waiver of any other subsequent breach or nonperformance. All remedies afforded in this agreement or by law, shall be taken and construed as cumulative, and in addition to every other remedy provided herein or by law. Failure of either party to enforce at any time any of the provisions of this agreement or to require at any time performance by the other party of any provision hereof shall in no way to be construed to be a waiver of such provisions nor shall it affect the validity of this agreement or any part thereof.
11.1 Risk of Loss. It is further agreed that the Customer assumes all risk of loss or damage from the use of the Company's services, and from the Customer's provision of consumer information to the Company, and does hereby release and hold harmless the Company from any and all claims on account of such loss or damage thereto.
12. Assignment and Delegation. Neither party shall assign, transfer or delegate any nor all of their responsibilities under this Agreement or the benefits received hereunder without first obtaining the written consent of the other party.
13. Jurisdiction and Venue. This Contract is entered into in Kootenai County, Idaho. Any action brought to enforce the provisions of this Agreement shall be brought and the parties agree that venue shall lie in the District Court in Kootenai County, State of Idaho, or in the Federal District Court for the District of Idaho.
14. Cost and Attorney’s Fees. In the event a lawsuit is brought with respect to this Agreement, or the provision of services and information described herein, the prevailing party shall be entitled to recover from the other party, its costs and attorney's fees.
15. Fraud. The Customer is responsible for payment of any charges incurred due to fraud, abuse, or misuse of the Company's services, whether known or unknown, to the Customer. It is the Customer's obligation to take all measures to ensure against such occurrences.
?16. Default. If either party violates any provision of this Agreement the non-defaulting party shall send the defaulting party written notice detailing the default. The defaulting party will have ten (10) days from the date of the written notice to cure a default. Thereafter, the defaulting party shall cure the default within a reasonable period of time, not to exceed ten (10) days from the date of notice. If the defaulting party fails to cure, the non-defaulting party may terminate this Agreement and any services hereunder upon notice and pursue any and all legal remedies.
17. Force Majeure. In the event that either party's performance is delayed, prevented, or inhibited because of any Act of God, fire, casualty, delay or disruption in transportation, flood, war, strike, lockout, epidemic, destruction or shut-down of facilities, shortage or curtailment, riot, insurrection, governmental acts or directives, any full or partial failure of any communications or computer network or any cause beyond such party's reasonable control, the party's performance will be excused and the time for the performance will be extended for the period of delay or inability to perform resulting from such occurrence. The occurrence of such an event will not constitute grounds for liability, or a declaration of default by either party.
18. Entire Agreement. This written Agreement, along with Exhibit A, Exhibit B and Exhibit C attached hereto constitute the entire and complete agreement between the parties and supersedes any prior oral or written agreements. This Agreement may not be changed, modified or altered except in writing signed by the parties hereto.
19. Construction. This Agreement is the result of negotiations between the parties, neither of whom has acted under any duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement must be construed in accordance with their usual and customary meanings. The Company and Customer hereby waive the application of any rule of law which otherwise would be applicable in connection with the construction of this Agreement that ambiguous or conflicting terms or provisions should be construed against the party who (or whose attorney) prepared the executed Agreement or any earlier draft of this Agreement.
20. Headings. The headings in this Agreement are for reference only and do not limit or define the meaning of any provision of this Agreement.
21. No Third Party Beneficiary. No term or provision of this Agreement is intended to be, nor may any term or provision be construed to be, for the benefit of any person, firm, corporation or other entity not a party to this Agreement (including, without limitation, any consumer), and no other person, firm, corporation or entity has any right or cause of action under this Agreement.
22. Severability. The invalidity of any portion of this Agreement, as determined by a court of competent jurisdiction, shall not affect the validity of any other portion of this Agreement.
23. Time of Essence. Time is of the essence in the performance of this Agreement.
24. Incorporation by Reference. All exhibits to this Agreement are fully incorporated into this Agreement as though set forth in full. The parties have executed this Agreement this ____ day of ____________________, 20____ ("Effective Date").