This 365 ECS Terms of Use (the “Terms of Use” or the “Agreement”) is between 365 ECS, LLC, a Maryland limited liability company (the “Company” or “Us”) and user (the “User” or “You”). This Agreement governs access to and the use of the 365 ECS mobile app for Customers (the “Customer App”) and the 365 ECS mobile app for Sitters (the “Sitter App” and, together with the Customer App, each, as applicable, the “365 ECS App” or the “Application”), the 365 ECS Website (the “Website”), and all services offered on the Application and the Website (the “Services”).

The 365 ECS App is a mobile/online platform which provides its customers (“Customers”) with access to on-demand babysitting and childcare services (each, a “Child Care Assignment” and, collectively, the “Child Care Services”). Customers can use the platform to arrange and schedule, at the time and location of their choosing, the provision of Child Care Services with independent third-party childcare providers under agreement with the Company or its affiliates (the “Child Care Contractors” or the “Sitters”). YOU ACKNOWLEDGE THAT 365 ECS DOES NOT PROVIDE CHILD CARE SERVICES.

BY DOWNLOADING OR INSTALLING THE 365 ECS APP OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. ANY NEW FEATURES OR TOOLS WHICH ARE ADDED TO THE CURRENT SERVICES WILL ALSO BE SUBJECT TO THIS AGREEMENT.

THE COMPANY RESERVES THE RIGHT TO UPDATE AND CHANGE THIS AGREEMENT BY POSTING UPDATES TO THE APPLICATION WHICH CONTAIN CHANGES TO THE TERMS OF USE. YOU ARE ADVISED TO CHECK THIS AGREEMENT FROM TIME TO TIME FOR ANY UPDATES OR CHANGES THAT MAY IMPACT YOU.

 

  1. Terms of License

 

This Agreement grants User a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable license to (i) access and use the Application on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, provided that User remains in compliance with all the terms in this Agreement and the 365 ECS, LLC Policy. Any rights not expressly granted herein are reserved by the Company and the Company’s licensors.

THE SERVICES ARE FOR YOUR PERSONAL USE. The Services may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose other than (i) as expressly provided herein or (ii) with the express written consent of the Company. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of the Company or any other party. In the event that you breach any provision of this Agreement, your rights under this section will immediately terminate.

When accessing the Services through the Application downloaded from an app store or app distribution platform, such as the Apple or Samsung Play App Store, (the “App Provider”), You acknowledge and agree that: (a) this Agreement is made between the User and the Company, and not with the App Provider, and that the Company is solely responsible for the Application; (b) the App Provider has no obligation to furnish any maintenance and support services with respect to the Application; (c) in the event of any failure of the Application to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider will refund the purchase price for the Application to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Application, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the responsibility of the Company; (d) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Application or your possession and use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (e) in the event of any third party claim that the Application or your possession and use of the Application infringes such third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement; (f) the App Provider, and its subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Application, and that, upon your acceptance of the terms and conditions of this Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Application against you as a third party beneficiary thereof; and (g) you must also comply with all applicable third party terms of service when using the Application.

 

  1. Accounts.

To access most of the functionality of the Services, you must sign up for a user account (an “Account”). During the sign-up process, we will request certain information which will be associated with your Account, including your name, email address and phone number.  If you are signing up as a customer (a “Customer”), we will also request information about your children (your “Children”) and emergency contact information.  If you are signing up as a Sitter, we will also request your availability to accept assignments.

Customers:  To schedule your first Child Care Assignment, you will need to provide an address for the Child Care Contractor to provide the Child Care Services requested. This should be the address where your Children will be—usually your home.  Additionally, in order to make or receive payments through the Services, you must provide the information requested by our payment processor, typically your name, credit card information and billing address.

Child Care Contractors:  Prior to using the 365 ECS App as a Sitter, you will need to complete our vetting process (including a background check) and enter into a Child Care Contractor agreement (a “Child Care Contractor Agreement”) with the Company.  Additionally, in order to receive payments through the Services, you must provide the information requested by our payment processor, typically your name, email, date of birth and mailing address. If you wish to be considered as a Child Care Contractor, please apply by clicking “JOIN THE TEAM” within the Application or on the Website.  Once approved as a Sitter, you will be granted access.

Throughout this Agreement, the term “User” shall include Customers, Child Care Contractors and any other users of the Services, as applicable.

You represent and warrant that all information you provide to the Company is complete, accurate and personal to you and that you will update such information as necessary to maintain its completeness and correctness. You represent that you have the right to request (or perform, as applicable) Child Care Services with respect to any Children and locations as are from time to time designated when requesting (or accepting to undertake, as applicable) a Child Care Assignment.  Violations of this section, or any other terms in this Agreement, may result in cancellation of your Account or other measures as deemed appropriate by the Company in its sole discretion.

To use the Services, you must be at least 18 years old. If you are incapable of entering into a binding contract in the jurisdiction in which you live, whether due to age or any other reason, you are prohibited from creating an Account or using the Services.

User Obligations.  As a User, you agree to use the Services in compliance with this Agreement.

Unauthorized Use & Access. User will prevent unauthorized use of the Services. User will promptly notify the Company of any unauthorized use of, or access to, the User’s Account or the Services. Each User is responsible for maintaining the confidentiality of such User’s password.

Restricted Uses. User will not (i) sell, resell, subcontract or lease the Services to Third Parties or (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury. User, not the Company, is responsible for User’s compliance with all local, state and federal laws.

Communication Setting Management. User is responsible for maintaining all “opt-in/out” settings for communications from or via the Services. The Company will only send communications which the User has consented to receiving via User’s communication settings selections.  Communications settings can be changed within the Services or by contacting contact@365ecs.com.

Updated Contact Information. If User provides contact information to the Company, that is the information the Company will have on file for User. To update that information (for example, to change an email address), please update your Account settings within the Services or contact us at  contact@365ecs.com.

  1. Child Care Services.

The 365 ECS App provides a marketplace for Customers to request Child Care Services from the vetted Child Care Contractors on our platform.

(a) Independent Child Care Contractors. Each Child Care Assignment requested by a Customer is matched by the 365 ECS App to one or more available Sitters. The Customer requesting a Child Care Assignment may also request a specific Sitter provide the Child Care Services.  Upon receiving notice that they have been matched with a Child Care Assignment, the Sitters may either accept or decline to provide the requested Child Care Services.  If no Sitters are available to accept a Child Care Assignment, or all available Sitters decline it, it is possible that a request for Child Care Services will remain unfulfilled. Sitters are solely responsible for their provision of Child Care Services.

(b) Manner of Provision of Child Care Services. Child Care Services will take place at the location(s) designated by the Customer, with respect to the Children selected by Customer, with a duration as requested by Customer and according to any additional special instructions the Customer may provide when requesting a Child Care Assignment.

(c) On-Demand vs. Scheduled Child Care Services. Customers may request Child Care Services (i) on an “as soon as possible” basis, in which case a customer selected set of Child Care Contractors may accept the Child Care Assignment and begin as soon as they are able to arrive at the location; or (ii) on a “scheduled” basis up to a week in advance, in which case a Child Care Contractor may accept the Child Care Assignment for performance at the future time Customer has designated.

(d) Cancellation and Refunds. Each Assignment is matched to an available Child Care Contractor.  Once a Child Care Contractor accepts a Child Care Assignment, they begin an undertaking in reliance on the request for Child Care Services, in anticipation of receiving Payment (as defined in Section 6). As such, our cancellation policy is as follows:

    • A Child Care Assignment may be freely cancelled up to three (3) hours before its scheduled start time, without any charge to Customer.
  • If a Child Care Assignment is cancelled less than three (3) hours before its scheduled start time, Customer will be charged a $45 cancellation fee.

(e) Unfulfilled Assignment.  It is rare, but for reasons beyond our control, our Child Care Contractors may not be available to accept a Child Care Assignment.  In the event that no Child Care Contractor accepts a Child Care Assignment within ninety (90) minutes following the requested start time, we will notify the Customer and cancel the Child Care Assignment.  Customer will not be charged.

 

    1. Agreement Between Customer and Child Care Contractor.

 

THE SERVICES FACILITATE THE OFFERING OF CHILD CARE SERVICES; HOWEVER, THE COMPANY IS NOT A PARTY TO THE CHILD CARE ASSIGNMENT AND DOES NOT PROVIDE CHILD CARE SERVICES. EACH CHILD CARE ASSIGNMENT RESULTS IN A DIRECT LEGAL CONTRACT BETWEEN THE CUSTOMER AND THE SITTER WHO ACCEPTS IT. All Child Care Assignments include at least the following terms (the “Child Care Agreement”):

 

    1.  Promises of Child Care Contractor
    1. Sitter agrees to provide the Child Care Services requested by the Customer in a timely, responsible and professional manner, meeting the acceptable standards of the child care industry, according to a level of care at least as high as the Sitter would use with his or her own children.
    2. Sitter agrees to follow the reasonable instructions of Customer with respect to (i) the specific Child Care Services to be provided; (ii) the Child the Child Care Services are to be provided; (iii) the time-frame to begin, and the duration of, the Child Care Assignment and (iv) any additional special instructions which the Customer may provide (for example, “Please read Sally’s favorite book to her before bedtime!”).
    3. Sitter agrees that payment for the Child Care Services shall be processed through the 365 ECS App and shall not exceed the charges authorized by the Customer at the time the Child Care Assignment is accepted and/or extended.
    4. Sitter is solely responsible for (i) the provision of Child Care Services provided in the Child Care Assignment, and (ii) the experience of Customers and their Children during the provision of the Child Care Services. Sitter holds the Company and its affiliates, representatives and assigns harmless from any liability which may arise therefrom.
    5. Child Care Contractor will not post pictures, personal information or any details about Customers or Children on social media channels without Customer’s express consent.

 

Promises of Customer

      1. Customer agrees that the Payment covers the provision of Child Care Services by the Sitter as well as certain administrative and other fees charged by the Company and its payment processors and other affiliates.
      2. Customer agrees to pay the charges designated to the Customer and the Sitter at the time the Child Care Assignment is accepted and/or extended. Customer agrees that such payment may be automatically, upon completion of the Child Care Services, charged to the billing method designated by Customer.
      3. Customer agrees that if any part of the Sitter’s services are unsatisfactory, Customer’s sole recourse is against the Sitter, and not the Company.
      4. Customer agrees that Customer and Customer’s Children will conduct themselves in an orderly manner and in full compliance with applicable laws. Customer agrees that any special conditions of Customer’s Children relating to the provision of Child Care Services (including, without limitation, illness, injuries, allergies, phobias or aggressive behavior) will be fully disclosed prior to the request for Child Care Services.
      5. Customer agrees that Customer, not Sitter and not the Company, is responsible for any property damage, personal injury, or death which may be caused by Customer or Customer’s Children during or incidental to the provision of Child Care Services, and holds Sitter and the Company and its affiliates, representatives and assigns harmless from any liability which may arise therefrom.

 

      1. Relationship of the Company

 

      • The Company is a facilitator of the Agreement between Customer and Sitter to provide Child Care Services and is not a party to the Child Care Agreement.
      • The Company is a third-party beneficiary to the Child Care Agreement.

 

 

      1. Payments.

 

      1. Customer Payments: As a Customer, you understand that use of the Services may result in charges to you for the services or goods you receive from a Sitter (“Charges”). After you have received services or goods obtained through your use of the Services, the Company will facilitate your payment (“Payment”) of the applicable Charges on behalf of the Sitter, as such Sitter’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Sitter. Charges will be inclusive of applicable taxes where required by law. Payments are final and non-refundable, unless otherwise determined by the Company at our sole discretion.

 

All Charges are due immediately and Payment will be facilitated by the Company using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that the Company may, as the Sitter’s limited payment collection agent, use a secondary payment method in your Account, if available.

 

      1. Sitter Compensation:  As a Sitter, you hereby appoint the Company as your limited payment collection agent for all Charges due to you under your Independent Contractor Agreement. After you have provided services or goods through your use of the Services, the Company will facilitate Payment of the applicable Charges to you as your limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly to you by the Customer. Charges will be inclusive of applicable taxes where required by law. Payments are final and non-refundable, unless otherwise determined by the Company at our sole discretion.

 

All Charges are due immediately and Payment will be facilitated by the Company using the preferred payment method designated in your Account, after which the Company will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that the Company may, as the Sitter’s limited payment collection agent, use a secondary payment method in your Account, if available.

 

In the event of a conflict between this Terms of Use and your Child Care Contractor Agreement, the terms of the Child Care Contractor Agreement will control.

 

      1. General. As between you and the Company, the Company reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in the Company’ sole discretion. The Company will use reasonable efforts to inform you of Charges that may apply in any given transaction, provided that Customer will be responsible for Charges incurred under Customer’s Account regardless of awareness of such Charges or the amounts thereof. The Company may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged or paid for the same or similar services or goods obtained through the use of the Services, and each User agrees that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges or Payments applied to you. You may elect to cancel your request for services or goods from a Sitter at any time prior to such Sitter’s arrival at location designated in the Child Care Assignment, in which case you may be charged a cancellation fee.

 

The Application’s payment structure is intended to fully compensate the Sitter for the services or goods provided. The Company does not designate any portion of Customer payment as a tip or gratuity to the Sitter. Any representation by the Company (on the website, in the 365 ECS App, or in the Company’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments for services or goods provided is not intended to suggest that the Company provides any additional amounts, beyond those described above, to the Sitter. You understand and agree that, while Customers are free to provide additional payment as a gratuity to any Sitter who provides services or goods obtained through the Services, Customer is under no obligation to do so. Gratuities are voluntary.

 

All Payments are collected by third party payment processors upon successful conclusion of a Child Care Assignment, or as otherwise provided in this Terms of Use. A portion of the Payment is retained by the Company as compensation for our provision of the 365 ECS App and facilitation of the provision of Child Care Services by the Child Care Contractors and a portion of the Payment is charged by our payment processor as a transaction fee.  The remaining amount of any Payment is paid to the Sitter as compensation for the Child Care Services provided. The Company does not receive or store credit card information. Upon signing up as a User, you will be requested to provide payment information, which will be automatically forwarded to our payment processor.

 

The 365 ECS App uses Pocketsuite, for payment processing services. By using the Pocketsuite payment processing services, you agree to the Pocketsuite Payment Services terms available at https://pocketsuite.io/ pos-payments/.

 

      1. Ratings and Reviews. After Customer has received services or goods obtained through the Services, Customer will have the opportunity to rate the experience and leave additional feedback about the Sitter.  All ratings and public reviews will be publicly viewable, including by other Users of the App, the Sitter and the Company.  Customers may also leave a private review which will only be visible to the Company.  Ratings and feedback may be used by the Company to monitor and improve the Services.

 

      1. Term and Termination.

 

This Agreement will remain in effect until the earlier to occur of: (i) User requests deletion of such User’s Account or (ii) termination otherwise in accordance with this Agreement.

 

The Company reserves the right to discontinue the Services in their entirety at any time and without prior notice. The Company may cancel or suspend a User’s Account if payment has not been made when due, with or without notice. If User engages in any activity that is harmful to the Company, our other customers, and Sitters, or any third parties, the Company will have the right to terminate or suspend such User’s Account or take any other necessary action immediately at the Company’s sole discretion and without prior notice.

 

If this Agreement terminates: the rights granted by the Company to User will cease immediately (except as set forth in this section); and the Company may delete any data relating to User’s Account. The following sections will survive expiration or termination of this Agreement: 4 (Agreement Between Customer and Child Care Contractor); 6 (Term and Termination), 7 (Intellectual Property Rights), 8 (Disclaimers), 10 (Indemnification), and 11 (Limitation of Liability)

 

      1. Intellectual Property Rights.

 

Reservation of Rights. This Agreement does not grant the Company any rights to any information uploaded by User or the intellectual property rights embodied therein except for the limited rights needed to run the Services, as expressly set forth in this Agreement. This Agreement does not grant Users (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Company’s trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights. You acknowledge and agree that the format, directories, queries, algorithms, structure and organization of the Services are the intellectual property and proprietary and confidential information of the Company and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by the Company.

Suggestions. Once submitted, comments and suggestions regarding the Services become the property of the Company. We may, at our discretion and for any purpose, use, modify, and incorporate into our products and services, license and sublicense any feedback, comments, or suggestions Users send the Company without any obligation to Users.

 

Open-Source Code. The Services may incorporate certain independent code that is licensed under open-source licenses (“Open-Source Code”). To the extent that the Services are licensed to you, any Open-Source Code incorporated therein is licensed to you in accordance with the applicable open-source licenses. To the extent that this Agreement conflicts with any of those open-source licenses, the conflicting terms and conditions will not apply to the corresponding Open-Source Code.

 

Copyrighted Materials; Copyright Notice.  All content and other materials available through the Services, the 365 ECS logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by the Company or are the property of the Company’ licensors and suppliers. Except as explicitly provided, neither your use of the Services nor this Agreement grant you any right, title or interest in or to any such materials.

 

DMCA Policy. If you have evidence, know, or have a good faith belief that your intellectual property rights or the intellectual property rights of a third party have been violated by material made available in the Services, and you want the Company to delete, edit, or disable the material in question, you must provide the Company with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material; (d) information reasonably sufficient to permit the Company to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to the Company’ designated agent via post or email at:

 

Attn: Copyright Contact

365 ECS, LLC
P.O. Box 5627

Derwood, MD 20855

contact@365ecs.com

 

      1. Disclaimers.

 

THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. To the fullest extent permitted by law, except as expressly stated in this Agreement, the Company makes no warranty of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use or non-infringement and any warranties arising out of the course of dealing or usage of trade. Your use of the Services is at your own risk, and the Company makes no warranty that the Services will meet your requirements or be available on any uninterrupted, secure, or error-free basis, or operate at any particular speed. The Company makes no representations about information uploaded or posted by Users, whether in respect of a Child Care Assignment, a review or comment by any User, or any other matter. All information submitted to the Services, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom that information originated. The Company is not responsible for the accuracy, completeness, appropriateness, or legality of any information provided by any User or Sitter. The Company has no responsibility or liability for any failure of the Services to store data, information, content, or files, the deletion of data, information, content, or files stored on the Services, or for the corruption of or loss of any data, information, content, or files stored on the Services. SITTERS ARE SOLELY RESPONSIBLE FOR THE ASSIGNMENTS THEY ACCEPT AND UNDERTAKE TO PERFORM. THE COMPANY HAS NO RESPONSIBILITY OR LIABILITY FOR THE ACTIONS OR OMISSIONS OF ANY OF THE SITTERS, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY CLAIMS ARISING OUT OF EVENTS WHICH OCCUR DURING A CHILD CARE ASSIGNMENT OR OTHER TRANSACTION WHICH THE COMPANY FACILITATED.

 

      1. Third Party Services.

 

If a User uses any third-party service in connection with the Services, (a) such third party service may access or use User’s information; (b) the Company will not be responsible for any act or omission of the third party, including the third party’s use of User’s information; and (c) the Company does not warrant or support any service provided by the third party.

 

Links to Third-Party Websites or Resources. The Services may contain links to third-party websites or resources. The Company provides, or allows display of, these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources or links displayed on such sites.

 

      1. Indemnification.

 

User will indemnify, defend, and hold harmless the Company, its officers, directors, employees, contractors and agents from and against all claims, disputes, demands, liabilities, damages, losses, costs and expenses (including, without limitation, settlement costs and reasonable attorneys’ fees) arising out of any third party claim (including without limitation claims by other Users) regarding: (i) any act or omission by such User; (ii) information submitted to the Services by User; and (iii) User’s use of the Services in violation of this Agreement any law or the rights (including contractual rights) of any third parties.

 

      1. Limitation of Liability.

 

Limitation on Indirect Liability. THE COMPANY WILL NOT BE LIABLE FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES EVEN IF THE COMPANY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

Limitation on Amount of Liability. THE COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT OF FEES COLLECTED BY THE COMPANY IN RESPECT OF TRANSACTIONS TO WHICH THE USER MAKING THE CLAIM(S) HEREUNDER WAS A PARTY DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY; OR (II) $100. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS SECTION 11 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND USER.

 

      1. Miscellaneous.

 

Terms Modification. The Company may revise this Agreement from time to time and the most current version will always be available to view on the 365 ECS Website. If a revision, in the Company’s sole discretion, is material, the Company will notify you (for example to the email address you provided). You are responsible for checking this Agreement regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If User does not agree to the revised Agreement terms, User must stop using the Services.

 

Third Party Requests. A “Third Party Request” is a request from a third party for records relating to any User’s use of the Services including information in or from a User’s Account or other activities and transactions on the Services or with respect to the provision of Child Care Services or the completion of Child Care Assignments. Third Party Requests may include search warrants, court orders or subpoenas, or any other request for which there is written consent from User permitting a disclosure.

 

User is responsible for responding to Third Party Requests via its own access to User’s information and accounts. User will seek to obtain information required to respond to Third Party Requests and will request assistance from the Company only if unable to obtain such information despite diligent efforts.

 

The Company will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify User of the Company’ receipt of a Third Party Request; (B) comply with User’s commercially reasonable requests supporting its efforts to oppose a Third Party Request; and (C) provide User with information or tools required for User to respond to the Third Party Request (if User is otherwise unable to obtain the information). If User fails to promptly respond to any Third-Party Request, then the Company may, but will not be obligated, to do so.

 

Entire Agreement. This Agreement constitutes the entire agreement between you and the Company with respect to the subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement

 

Governing Law. This Agreement and the Services will be governed by Maryland law except for its conflicts of laws principles.

 

Disputes, Venue.

 

(a) If a dispute arises between you and the Company, our goal is to provide you a neutral and cost-effective means of resolving the dispute quickly. To help us do that, you agree to first contact the Company Customer Support at contact@365ecs.com to describe the problem and seek a resolution. If Customer Support does not resolve your issues, you agree to attempt to resolve any dispute arising out of or relating to this contract through negotiations between the Company and User or an agent of User who has the authority to settle the dispute. If the dispute is not resolved by negotiation within thirty (30) days of receipt of a written “invitation to negotiate,” then you and the Company agree to the following method to resolve any dispute or claim between us:

 

(b) ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES IN THE STATE OF MARYLAND, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.  NOTWITHSTANDING THE FOREGOING, ANY CONTROVERSY OR CLAIM TO WHICH THE COMPANY OR ITS AFFILIATES ARE NOT A PARTY, INCLUDING WITHOUT LIMITATION ANY CONTROVERSY OR CLAIM BETWEEN ONE OR MORE USERS, SHALL NOT BE REQUIRED TO BE SETTLED BY ARBITRATION.

 

(c) For any claim which does not exceed $10,000, the arbitration will be conducted solely on the basis of the documents that you and the Company submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If a claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

 

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, illegal, unenforceable or in conflict with any law, the unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of this Agreement will remain in full effect.

 

Notice. Notices may be sent electronically, must include “LEGAL NOTICE” in the subject line, and are deemed given when received. Notices to you may also be sent to the applicable email address you provided and are deemed given when sent. Notices to the Company must be sent via certified mail to:

 

Attn: Legal

365 ECS, LLC
PO BOX 5627,

Derwood, MD 20855

 

With a copy to:

Contact@365ecs.com

 

Waiver. A waiver of any default is not a waiver of any subsequent default.

 

Assignment. User may not assign or transfer any part of this Agreement without the written consent of the Company. The Company may not assign this Agreement without providing notice to User, except the Company may assign this Agreement to an affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.

 

No Agency. The Company and User are not legal partners, employees, agents, or joint venturers, but are independent contractors. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between User and the Company or any of its principals, employees, representatives, or agents.

 

Publicity and Likeness. In the course of using the 365 ECS App/Website, Users may film, photograph or make audio recordings which will be uploaded through the Services. Users consent to such recordings (including, with respect to Customers, any recordings made by Sitters during the course of completing a Child Care Assignment) and grant the Company the right to use them for marketing purposes on the Company’s website, advertisements and social media accounts.

 

Force Majeure. Neither the Company nor User will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

 

No Third-Party Beneficiaries. Except as otherwise expressly provided herein, there are no third-party beneficiaries to this Agreement.

 

Export Restrictions. The Services originate in the United States and are subject to United States export laws and regulations. The Services may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Services may be subject to the import and export laws of other countries. You agree to comply with all United States and applicable foreign laws related to use of the Services.

Acceptable Use Policy

 

The Company is proud to offer its customers access to on-demand childcare services. While we do not want to place undue restrictions on the ways in which you can use the Services, we must ask that you use them responsibly.

As a condition to our provision of the Services, you must agree to refrain from any actions which could be harmful to the Company, other Users, or any third parties.  In particular, you must never use the Services, nor attempt to use the Services, to do any of the following:

      • Scan, test or probe any computer network for security vulnerabilities;
      • Circumvent or attempt to circumvent security, authentication or verification measures;
      • Access, tamper with or use any non-public areas of the Services or the Company’s computer systems, or the technical delivery systems of the Company or its providers;
      • Reverse engineer any of the Company’s proprietary technology;
      • Access the Services in any manner other than our publicly-supported interfaces (for example, “scraping”);
      • Threaten to, or actually, harm, disrupt or interfere with any user, host or network, for example by spamming, sending a virus, overloading, mail-bombing or attempting a denial of service attack;
      • Send information with deceptive or false source-identifying information, otherwise known as “phishing,” or otherwise misrepresent your identity or affiliation with any person or entity;
      • Send unsolicited email, junk mail, chain-letters, advertisements, promotions or other “spam” messages;
      • Publish any fraudulent, misleading, defamatory or libelous material or information that otherwise infringes on the rights of others;
      • Distribute or plant malware;
      • Upload or share any materials that (i) infringe or misappropriate the intellectual property rights or violate the privacy rights of any party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity), (ii) are unlawfully obscene or pornographic, (iii) advocate bigotry, religious, racial or ethnic hatred or (iv) incite violence; or
      • Violate any law or regulation or the rights (including contractual rights) of any third party.

 

The Company reserves the right to monitor the Services and investigate suspected violations of this Acceptable Use Policy, and to choose, in its sole discretion, how to respond to violations, including without limitation: suspension or termination of access to the Services, banning IP addresses, deletion of the offending data or files, notification of the relevant authorities or prosecution.

Privacy Policy

 

The Company cares about your privacy, and wishes to protect it while also providing you with full and transparent disclosure about our uses of your information.  This Privacy Policy (this “Privacy Policy”) explains how we collect, use, share and protect information about you. It also provides information regarding how you can access and update your information and make certain choices about how your information is used. This Privacy Policy is incorporated by reference into the 365 ECS Terms of Use, and any terms not otherwise defined herein shall have the meaning assigned to them in the 365 ECS Terms of Use.

 

The Information We Collect

In order to provide the Services, we need to collect and process certain information. Depending on your use of the Services, that may include:

 

      • Information (such as your name, email and postal addresses, telephone number, and country of residence) that you provide when creating an Account;
      • Payment information (including credit card and banking information) you submit to the Services in furtherance of making or receiving payments;
      • Information you leave in a rating or review of a Sitter;
      • Details of any requests or transactions you make through the Services;
      • Information you choose to include in your public profile, including biographic information, personal interests and profile pics;
      • Information uploaded to the Services by Customer regarding Customer’s children, including names, preferences and needs.
      • Information about your activity on and interaction with the Services, such as your IP address and the device and operating system you use;
      • Photographic, video and audio recordings made using the 365 ECS App or uploaded through the Services;
      • Geo-location information; and
      • Ratings and Reviews left by Customers;
      • Communications you send to us (for example, support requests, questions or comments, or reports of a problem).
      • Information about certifications and documentation, such as driver’s license or ID and CPR certification.

 

If you are a contact of one of our Users, that User may provide your name and email address to the Company if they think you would be interested in the Services.

 

If you are an emergency contact or pediatrician of one of our Customers, that Customer may provide your contact information in case a Sitter needs to reach you.

 

With respect to geo-location data we track through your mobile device, we use that geo-location information for various purposes—including to understand your location and help match you with a Sitter (or active Child Care Assignments if you are a Sitter) nearby. We may also use location information to send you promotions and offers, and to allow you (if you choose through any features we may provide) to share this information with other people. Except as otherwise permitted in this Privacy Policy, we will not share this information with third parties for any purpose and will only use this information for the sole purpose of providing you with the ability to request or provide Child Care Services via the 365 ECS App. You may at any time no longer allow the 365 ECS App to use your location by turning this feature off on your device.

 

Private Information

 

Certain data will not be publicly displayed or revealed to other users. Private data includes:

 

      • Payment information;
      • Private Reviews;
      • IP addresses; and
      • Communications you send to the Company directly (for example, support requests, questions or comments, or reports of a problem).

 

We never share or sell your personal information.

 

When a Payment is made, the Payment information is only sent to our payment processor. Your payment information is never received by or stored by the Company.  The 365 ECS App uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/payment-services-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/bank-agreement-us. As detailed in its policies and agreements, our payment processor may store your payment information.

 

We do reserve the right to disclose private information when we believe that doing so is reasonably necessary to comply with the law or law enforcement, to prevent fraud or abuse, to respond to violations of The User Policy or to protect the Company’s legal rights.

 

Information We Share with Other Users

When a Customer submits a Child Care Assignment, we share certain information with our Sitters in order to allow them to better provide Child Care Services.  The Sitter who accepts a Child Care Assignment will be able to see information relating to the posting, including the family name of the requesting Customer, the number and names of the children, the location requested, the time, duration, and type of Child Care Services requested, the profile pictures of the Customer and Children (if any), emergency contact information, and special information and instructions about the Children.

We may also share information with third-party services, only to the extent necessary to provide the Services (for example, with our payment processing and hosting partners).

When a Sitter accepts a Child Care Assignment, the Customer who requested it will be able to see the full name of the Sitter, and the profile picture, bio and ratings of the Sitter.

Public Information

When you sign up for the Services, we create a basic profile for you for internal purposes. The information you provide to complete your 365 ECS Account will not be displayed publicly.

Customers: Information you post about a requested assignment, including your family name, information you include about your children, profile pictures, and the details of the request for Child Care Services will be visible to potential Sitters.

Child Care Contractors: your full name, profile picture, ratings, reviews, any information you choose to include in your profile, and location may be viewable by Customers checking for Sitters in your location. Your full name, profile picture, ratings, reviews, any information you choose to include in your profile will also be viewable by any Customers whose Child Care Assignments you have accepted.

Social Media

The Services may allow you to connect to Social Networks and share your actions, comments, content and other information publicly or with friends. You may also be able to connect with us on Social Networks on which the Company has a presence. We will never post to any Social Network on your behalf without first obtaining your permission. Please be advised that any information that you post to a Social Network may be publicly viewable, depending on your privacy settings on such Social Network. Please contact those sites and services directly if you want to learn about their privacy practices.

Uses of Your Personal Information

“Personal Information” means any information that is personally identifiable to you, and includes information such as your name, physical address, email address, phone number and payment information.  We will use the Personal Information you provide to:

      • Identify you when you use the Services;
      • Enable us to provide you with the Services;
      • Send you information we think you may find useful or which you have requested from us;
      • Enable us to contact you regarding any question you make through the Services;
      • Analyze the use of the Services and the people visiting to improve our content and Services;
      • Customize the Services for you; and
      • Use for other purposes that we may disclose to you when we request your information.

We take securing your data and preserving your privacy very seriously. We do not store payment information. We never post anything to any Social Network or third-party account without your permission. We will never sell your data.

Email

We want to communicate with you only if you want to hear from us. We will try to give you the ability to opt out of communications you do not wish to receive.

We may send you email relating to your personal transactions, including when you make a payment.

We will share our newsletter with all our Users. We may also add you to our newsletter if we believe you are interested in our Services, for example if you signed up to receive our newsletter or a User shared your email with us. If you wish to unsubscribe from our newsletter at any time, simply follow the “unsubscribe” link at the bottom of every email and update your communications settings accordingly.

We may send offers from our marketing affiliates and other service providers we think will be valuable to you. If you wish to unsubscribe from such messages at any time, simply click on the “unsubscribe” link at the bottom of every email and update your communications settings accordingly.

We may also send you administrative and service-related announcements on the rare occasions when it is necessary to do so.

Technology

A few of the methods that may be used to collect usage information include, without limitation, the following (and subsequent technology and methods hereafter developed):

We use Cookies on the 365 ECS Website.  Cookies are small information files which are issued to your computer when you visit a website and which store and sometimes track information about your internet use. The Company may use cookies to help recognize you as a repeat visitor, to improve the quality of our Services, and to try and make your browsing experience meaningful. Cookies may be used for many purposes, including, without limitation, remembering you and your preferences and tracking your visits to our web pages. Cookies work by assigning a number to the user that has no meaning outside of the assigning website. If you do not want information to be collected through the use of cookies, your browser or device allows you to deny or accept the use of cookies. Cookies can be disabled or controlled by setting a preference within your web browser or on your device. If you choose to disable cookies on your device or browser, some features of the Services may not function properly or may not be able to customize the delivery of information to you.

You should be aware that the Company cannot control the use of cookies (or the resulting information) by third-parties, and use of third party cookies is not covered by our Privacy Policy.

Most web browsers automatically accept cookies but, if you prefer, you can change your web browser to prevent acceptance of cookies or to notify you each time a cookie is set. You can refer to your web browser’s documentation for details on how to do so. You can also learn more about cookies by visiting http://www.allaboutcookies.org which includes additional useful information on cookies and how to block cookies using different browsers. Please note that by blocking or deleting cookies used on our Services, you may not be able to take full advantage of our Services.

On the 365 ECS Website, we may from time to time use analytics gathering tools, including Google Analytics (Terms of Service), and similar tools to gather aggregated, non-personally identifiable information about usage of the Services.

Conclusion

To modify or delete the personal information you have provided to us, please log in and update your User Account. We may retain certain information as required by law or as necessary for business purposes.

We will give you a copy of all the personal information about you that we hold at your request. This information is subject to a fee not exceeding the prescribed fee permitted by law.

Persons under 18 are not permitted to use the Services on their own, so this Privacy Policy makes no provision for their use of the Services.

Information that you submit through the Services may be transferred to countries other than where you reside (for example, to our servers in the United States). We will protect all information we receive in accordance with this Privacy Policy.