Updated: March 1st, 2024
This Customer Agreement for Upkid Service (“Customer Agreement”) sets out the legal terms of the relationship between the entity or person that registered to use the Upkid Service (“you,” “your,” or “Customer”) and (i) Upkid, Inc. (“Upkid”) with respect to Customer’s use of the Upkid Platform, and Customer’s engagement with Upkid Teachers performing services as independent contractors. Customer and Upkid may be referred to collectively as the “Parties,” or individually as a “Party.”
This Customer Agreement incorporates by reference Upkid’s Privacy Policy (https://upkid.com/legal/privacy) and Upkid’s Acceptable Use Policy (https://upkid.com/legal/acceptable-use-policy).
By using the Service, and the Upkid Platform in connection with the Service, you represent that (1) you have read, understand, and agree to be bound by the Agreement, and (2) you have the authority to enter into the Agreement on behalf of Customer.
1. Description of the Service
1.1 Upkid Platform. Upkid provides a technology platform (the “Upkid Platform”) through which Customer can connect with a etwork of geographically dispersed workers (“Upkid Teachers”) (the “Service”). The Upkid Platform is Upkid’s proprietary technology platform provided by Upkid to Customer through which Customer can be connected to Upkid Teachers. The Upkid Platform consists of a mobile application (“Mobile App”), a Customer portal (“Portal”), and other related technology. Through the use of the Upkid Platform, Customer may, in its discretion, post a work request (“Request”) containing a general job description seeking one or more Upkid Teachers, proposing the compensation related to that Request, and inviting qualified Upkid Teachers to accept such Request. Requests can cover a single day or multiple days; each day is separately referred to as an “Engagement.” If an Upkid Teacher agrees to the Request (“Accepts”), including, as applicable, the Upkid Teacher’s classification as an independent contractor, a contractual agreement (an “Accepted Request”) is formed directly between Customer and the Upkid Teacher. Customers with access to the Upkid Platform may be able to post Requests for Upkid Teachers performing and/or providing services as independent contractors (“1099 Requests”). For purposes of this Agreement, the term “Upkid Teachers” includes individuals who choose to perform and/or provide services pursuant to 1099 Requests.
1.2 Content of Request. Requests shall include a description of the work to be performed, the job classification, the location, date, start and end times, if applicable, and the compensation metrics for the job. Customer acknowledges and agrees that the information provided in a Request will be sent to Upkid Teachers to enable them to review, consider, and if they so choose, respond to such Request. By submitting the Request, Customer expressly consents to have details of the Request sent to Upkid Teachers, and Customer further acknowledges and agrees that any information contained in a Request is accurate, current, and truthful.
1.3 Tracking Time, Review by Customer, and Payment of Upkid Teachers. Upkid Teachers shall use the Mobile App or other Upkid technology to track their time worked for Customer. On a daily basis, Customer shall review and approve completion of the applicable job and the time worked. If Customer does not dispute completion of the jobs or the time worked by each applicable Upkid Teacher within 24 hours after the Engagement is completed, Customer accepts the Engagement as worked and Upkid’s time records as accurate for purposes of computing any charges or fees owed under this Customer Agreement. Once the Customer accepts through action or inaction, the Request, it shall be a “Completed and Approved Request”. If Upkid reasonably determines that any disputed time was not actually worked, such amounts shall not be charged to Customer. Customer shall not reject or modify any Upkid Teacher time entries in an inaccurate manner. Upkid shall facilitate the payment of compensation to such Upkid Teachers at such rate(s) specified in the Request. Customer shall not be responsible for transmitting required tax forms to any Upkid Teachers performing services for Customer.
1.4 Removal of Upkid Teacher(s). Customer shall have the right to, for any lawful reason: (i) reject any Upkid Teacher from performing services, or (ii) request that Upkid remove any or all of the Upkid Teachers that have Accepted Requests with Customer hereunder. In such event, Upkid shall promptly comply with Customer’s directions. Customer’s liability to Upkid with respect to any lawfully removed Upkid Teachers shall be limited to (i) the Charges for the time actually worked by such Upkid Teachers prior to the time of Customer’s request for removal, and (ii) a flat charge of twenty dollars ($20) if the Customer cancels or substantially modifies an Accepted Request less than twenty-four (24) hours before the performance of services thereunder is scheduled to begin (the “Cancellation Fee”).
1.5 Cancellation Fees. If Customer cancels or substantially modifies an Accepted Request less than twenty-four (24) hours before the performance of the services thereunder is scheduled to begin, Customer shall pay to Upkid the Cancellation Fee. The Parties agree that the Cancellation Fee is not a penalty, but rather a reasonable measure of damages, based on their experience.
If Customer attempts to cancel or substantially modify one or more Engagements or Accepted Requests (the “Modification Request”) outside of the Portal or Mobile App (e.g., via asking a Upkid employee to do same), such Modification Request must meet the following conditions to escape imposition of any Cancellation Fee: 1) the request must be delivered via email to Customer’s Upkid point of contact and contact@upkid.com, 2) the request must be delivered no less than four Business Hours before the 12-hour cancellation window closes. For purposes of this section, “Business Hours” includes only 8am to 6pm Local Time.
“Local Time” is based on the time zone of the location where the Requests would be performed. Substantial modifications include: lowering the offered amount of pay, adding additional specifications (such as the equipment needed to complete the Request), or changing the length, location, or start time of a Request.
By way of examples, only, the following table provides deadlines for Customer to cancel or substantially modify a Request without incurring Cancellation Fees:
2. Your use of the Service
2.1 Customer’s Use of the Service. Customer agrees to keep all Customer account information accurate, complete and up-to-date. In addition, Customer warrants and represents that: (i) it has all necessary rights, authorizations, permissions, and licenses to allow each Upkid Teacher subject to an Accepted Request to perform services for Customer; (ii) it shall provide a safe, secure, and healthy work environment for all Upkid Teachers performing services pursuant to Accepted Requests, including adherence to any applicable health and safety rules and regulations and, as needed, the provision of site-specific safety equipment and/or safety training; (iii) it shall comply with all applicable workplace laws, including any applicable wage and hour laws, and laws governing harassment, discrimination, and retaliation; (iv) it shall provide Upkid Teachers with all legally required meal and rest breaks (whether required by statute, contract, or otherwise) on a timely and compliant basis; (v) it shall only post Requests that can be lawfully performed in accordance with applicable laws, regulations, and ordinances; (vi) it is exclusively responsible for all costs and expenses Customer incurs relating to the fulfillment of all Accepted Requests by applicable Upkid Teachers; (vii) it will not provide Upkid with any personally identifiable information of any individual unless such individual has consented to such disclosure; (viii) it shall comply with federal, state, and local laws and regulations governing background checks, including those laws limiting inquiries related to criminal arrests or convictions, and that, unless permitted by applicable laws and regulations, Customer will not use criminal background checks to automatically or categorically exclude Upkid Teachers just because they have a record of citation, arrest, or conviction for criminal conduct; and (ix) it will allow Upkid Teachers to accept and perform Requests without regards to their race, color, religion, national origin, age, sex, marital status, ancestry, physical or mental disability, veteran status, sexual orientation, gender identity or any other status that might be protected under any applicable laws, regulations, or ordinances.
Customer acknowledges and agrees that Upkid cannot and does not exercise any control over the working conditions or the work sites at which any Upkid Teacher performs any services for Customer, and Customer agrees to inform Upkid of any work-related injury in connection with services performed by any Upkid Teacher for Customer within twenty-four hours.
2.2 Upkid’s Responsibilities. In providing the Service to Customer, Upkid warrants and represents that: (i) to the extent requested by Customer and as permitted under applicable law, any Upkid Teacher who may perform a Request for Customer has undergone and successfully completed a post-offer background check based upon Customer-supplied criteria and according to the specification required by local laws and regulations; (ii) any Upkid Teacher who may perform a Request for Customer has agreed to the Upkid Terms of Use; and (iii) Upkid shall facilitate payment of Upkid Teacher Compensation at such rate(s) specified in a Request, and, as applicable, transmit any required tax forms to Upkid Teachers performing services for Customer.
Customer further recognizes and agrees to the following:
Washington Users: Upkid complies with state and local laws limiting pre-employment inquiries related to criminal arrests or convictions, including Washington’s Fair Chance Act, RCW 49.94.010. Upkid does not permit Customers to use criminal background checks to automatically or categorically exclude Upkid Teachers just because they have a record of citation, arrest, or conviction for criminal conduct.
3. Term and Termination
3. Term and Termination. This Agreement shall commence on the earliest of the following dates: 1) the date Customer first accesses the Service; 2) the date Customer executes the Form, or 3) the date Customer otherwise first agrees to this Agreement. This Agreement shall continue until terminated as provided herein. Upkid may terminate this Agreement immediately upon written notice to Customer if Customer materially breaches the Agreement in a manner that, in Upkid’s reasonable judgment, cannot be remedied. In addition, Upkid may terminate this Agreement at any time upon 30 days’ notice to Customer. Customer shall pay all undisputed Charges (as defined below) due and owing through the effective date of such termination.
4. Independent Contractors
4. Independent Contractors (1099 Requests). As to Customer’s 1099 Requests, Customer acknowledges and agrees that: (i) it intends to engage Upkid Teachers as independent contractors and, to the best of its reasonable knowledge, is offering work that qualified Upkid Teachers can accept as independent contractors; (ii) Upkid does not, in any way, supervise, direct, or control the Upkid Teachers’ work or services performed for Customer in any manner, nor does Upkid set such Upkid Teachers’ work hours and location of work, or the type or manner of compensation to be paid pursuant to any Accepted Request; (iii) neither it nor the Upkid Teachers are employees of Upkid; (iv) Upkid is not required to provide Customer or any Upkid Teachers with workers’ compensation insurance or other similar insurance coverage; and (v) any Upkid Teacher classified as an independent contractor is free at all times to perform Requests for, be employed by, or otherwise engage with persons or businesses other than Customer, including any competitor of Customer. Customer further acknowledges and agrees that if Customer posts Requests with a specified length of more than 30 consecutive business days or 100 hours per month (a “long-term engagement” or “LTE”), Upkid Teachers performing services for Customer pursuant to the LTE shall be entitled to two (2) full-day service breaks per calendar month during which the Upkid Teachers need not perform the contracted services as scheduled.
5. Charges, Mark-up, and Taxes
5.1 Charges, Mark-up, and Taxes. In exchange for the Service hereunder, Customer shall pay to Upkid the following amounts (collectively, the “Charges”): (i) an amount equal to the sum paid by Upkid to such Upkid Teacher in connection with services rendered by such Upkid Teacher to Customer (the “Upkid Teacher Compensation”); (ii) compensation to Upkid (a “Mark-Up”) of a percentage of the amount paid to such Upkid Teacher, which amount is thirty percent (30%) of the Upkid Teacher Compensation unless a separate contract or work order between Upkid and Customer clearly establishes a different Mark-Up; (iii) any Cancellation Fees as set forth in Section 1.4 above; and (iv) any Hiring Fees as set forth in Section 6 below. Customer is responsible for paying all value-added, sales, use or withholding taxes. Any undisputed Charges on an invoice that remain unpaid after the due date shall bear interest at the rate of one and one-half percent (1.5%) per month which shall be invoiced separately. If the amount of any late payment charge exceeds the maximum rate permitted by law, the charge will be reduced to that maximum amount.
6. Hiring of Upkid Teachers and Permanent Placement Service
6.1 Hiring of Upkid Teachers. “Hire” shall mean the retention of a Upkid Teacher as an employee, independent contractor, agent, intern or otherwise, for any period of time where the Upkid Teacher is compensated outside the Service in the year following Customer’s last contact with the Upkid Teacher via the Service by any officer, or employee or anyone retained by any of them. If a Customer Hires a Upkid Teacher, it shall promptly notify Upkid thereof. For each Hire, Customer will pay $500, unless a separate contract between Upkid and Customer clearly establishes a different Hiring Fee. Customer shall pay to Upkid any Hiring Fee owed on the same schedule as the payment of all other fees or invoices to Upkid. In the event Customer does not notify Upkid within thirty (30) days that it has Hired a Upkid Teacher, the Hiring Fee shall be two (2) times the Hiring Fee otherwise owed for each such Upkid Teacher it has Hired.
6.2 Use of Permanent Placement Service. Customer may engage Upkid to act as recruiter for Company through Upkid’s “Permanent Placement” service. Permananet Placement includes engaging Upkid to hire any full-time or part-time staff on behalf of Customer. Candidate shall be considered “Hired” by extending an offer to a candidate presented by Upkid, and that candidate beginning work for Customer in the year following Upkid’s presentation of candidate. If a Customer Hires a candidate from Permanent Placement, it shall promptly notify Upkid thereof. For each Hire, Customer will pay $995, unless a separate contract between Upkid and Customer clearly establishes a different Hiring Fee. Customer shall pay to Upkid any Hiring Fee owed on the same schedule as the payment of all other fees or invoices to Upkid. In the event Customer does not notify Upkid within thirty (30) days that it has Hired a Upkid Teacher, the Hiring Fee shall be two (2) times the Hiring Fee otherwise owed for each such Upkid Teacher it has Hired.
7. Representations and Warranties
7.1 Mutual Representations and Warranties. Each Party hereby represents and warrants that: (i) this Agreement constitutes a valid, legal and binding obligation of the Party; and (ii) it shall comply with all applicable laws with respect to its performance and obligations under the Agreement.
8. Disclaimers
8.1 DISCLAIMERS.EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, UPKID DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS, STATUTORY OR IMPLIED) OF ANY KIND, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. UPKID MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (II) THE SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT UPKID HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY UPKID TEACHER AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN UPKID, INC. AND THE UPKID TEACHERS. UPKID DOES NOT GUARANTEE OR WARRANT THE UPKID TEACHERS’ PERFORMANCE OF SERVICES FOR CUSTOMER PURSUANT TO AN ACCEPTED REQUEST OR ENGAGEMENT, THE OUTCOME OR QUALITY OF THE SERVICES PROVIDED THEREUNDER OR THAT UPKID TEACHERS WITH THE SKILLS OR EXPERIENCE IDENTIFIED BY CUSTOMER WILL ACCEPT ANY REQUEST.
9. Intellectual Property Ownership
9.1 Upkid Intellectual Property. Customer acknowledges that all the intellectual property rights, including but not limited to any patents, copyrights, trademarks, service marks, trade secrets or other proprietary rights in and to the Service (including the Upkid Platform) (collectively, “Upkid Intellectual Property”) are owned by and shall remain property of Upkid, Upkid’s licensors or suppliers. Subject to the foregoing, during the term of this Agreement, Upkid grants Customer the limited, revocable right to access and use the Service (including the Upkid Platform). Customer shall not: (i) exploit or use the Service except as expressly provided herein; (ii) modify or create derivative works of the Service (including the Upkid Platform), or merge any software therein with other software; (iii) disassemble, decompile or otherwise reverse engineer the Service (including the Upkid Platform) or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; or (iv) modify, obscure or delete any proprietary rights notices included in or on the Service (including the Upkid Platform). Customer agrees to comply with Upkid’s Acceptable Use Policy (https://upkid.com/acceptable-use-policy).
9.2 Customer Intellectual Property. Customer represents and warrants that it owns or has sufficient rights to all content it provides to Upkid (“Customer Content”), and that neither the Customer Content nor Customer’s use and/or provision of the Customer Content to others will infringe, misappropriate or violate a third party’s intellectual property rights, moral right, rights of publicity or privacy or any applicable law or regulation. Customer retains all right, title, interest and responsibility in and to any and all content it posts on the Service. Upkid and its licensors exclusively own all right, title and interest in and to all other content. Customer grants Upkid a worldwide, non-exclusive, transferable, sublicensable, royalty-free license to use, copy, modify (for formatting purposes only), transmit, publicly and digitally display and perform and distribute any Customer Content, including Customer’s logo, trademarks and/or service marks (“Customer Intellectual Property”), that Customer provides to Upkid or shares to the Upkid Platform. Such license shall also permit Upkid to use Customer Intellectual Property, Customer Content, and other information related to Customer’s use of the Service for the purposes of (i) growing Upkid communities, (ii) conducting marketing activities and analyses, (iii) conducting statistical analyses and; (iv) maintaining or making improvements to the Service.
9.3 Suggestions. Customer hereby grants Upkid a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Upkid Intellectual Property, and otherwise fully exploit, any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its officers, directors, employees, or agents related to the Upkid Intellectual Property or the Service.
10. Confidentiality
10.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by Upkid (“Disclosing Party”) to the Customer (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
10.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
10.3 Unauthorized Disclosure of Confidential Information. The Receiving Party hereby acknowledges that the unauthorized use or disclosure of any Confidential Information of the Disclosing Party may cause irreparable harm to Disclosing Party. Accordingly, the Receiving Party agrees that the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief, in addition to all other remedies available at law for any threatened or actual breach of this Section or any threatened or actual unauthorized use or disclosure of Confidential Information. If the Receiving Party becomes aware of a threatened, suspected or actual breach of its confidentiality obligations set forth herein, the Receiving Party shall immediately (but in no event more than 24 hours from the time that it reasonably believes such a threatened, suspected or actual breach has occurred) so notify the Disclosing Party.
10.4 Compelled Disclosure. Except as set forth above, the Receiving Party shall not voluntarily provide the Disclosing Party’s Confidential Information to any third party unless authorized in writing by the Disclosing Party. Notwithstanding the foregoing, unless expressly prohibited by law, if the Receiving Party is required by a court of competent jurisdiction (including by subpoena in a civil case) or regulatory authority to disclose the Disclosing Party’s Confidential Information, it shall: (i) immediately notify the Disclosing Party in writing upon receiving notice of such requirement; (ii) consult with the Disclosing Party regarding the Receiving Party’s response to any such request; (iii) cooperate with the Disclosing Party’s reasonable requests in connection with efforts by the Disclosing Party to intervene and/or quash or modify the legal order, demand, or request; and (iv) upon the Disclosing Party’s request, supply the Disclosing Party with a copy of the Receiving Party’s response (including a copy of the information it proposes to provide) prior to providing it to the requesting party.
10.5 Data Privacy Obligations. For the avoidance of doubt, Upkid is not in the business of selling Customer data and will not sell, license, rent or otherwise provide such information to third parties without Customer’s prior written consent. Except as explicitly contemplated under the Service, neither Party shall provide to the other Party any personal information. Each Party shall: (i) maintain a privacy policy that complies with all applicable laws and regulations; and (ii) comply with all applicable data privacy laws and regulations. “Personal Information” or “PI” shall mean any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
11. Indemnification
11.1 Indemnification. Customer shall indemnify, defend, and hold Upkid, its licensors and their respective parent organizations, subsidiaries, Affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) arising out of, in connection with or related to: (i) any actual or alleged misuse of the Service (including the Upkid Platform) by Customer, its Affiliates, agents or contractors; (ii) any actual or alleged infringement by Customer Content or Customer Intellectual Property of any intellectual property rights or any claim that any Customer Content or Customer Intellectual Property violates any rights of publicity or privacy of any third party; (iii) any material violation or alleged material violation of any laws or regulations by Customer; (iv) any negligent or willful misconduct of Customer its Affiliates, agents or contractors; (v) any breach by Customer of any representation, warranty, covenant, or obligation in this Agreement; (vi) any negligent or intentional act or omission committed by Customer, its Affiliates, agents or contractors, in connection with the performance of this Agreement, which act or omission gives rise to any claim for damages against Customer, Upkid and/or its parents, affiliates, employees or agents; or (vii) Customer’s violation of applicable law. Upkid specifically denies any obligation to defend and/or indemnify Customer its Affiliates, agents or contractors from and against any third-party claims made against Customer, its Affiliates, agents or contractors arising from any negligent or intentional act or omission committed in connection with the performance of any Engagement on Upkid.
Customer understands and agrees that Customer is responsible for selecting the job classification(s) it will offer when posting Requests. Accordingly, Customer warrants and represents that it has properly classified all Upkid Teachers with respect to the services it receives from Upkid Teachers, and Customer assumes all liability for proper classification of Upkid Teachers as independent contractors or employees based on applicable legal guidelines. Customer warrants it will comply with all applicable wage and hour laws, including obligations under FLSA, or other federal, state, and local wage and hour laws.
With respect to any 1099 Requests, Customer agrees to indemnify, hold harmless and defend Upkid from any and all claims arising out of or related to claims that any Upkid Teacher was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Upkid Teacher was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Upkid was an employer or joint employer of a Upkid Teacher, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
This Section shall survive the termination or expiration of this Agreement.
12. Limitations of Liability
12.1 Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPKID SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR LOST BUSINESS OR BUSINESS OPPORTUNITIES WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL THEORY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY OR WHETHER SUCH DAMAGES WERE FORESEEABLE. IN ADDITION, UPKID SHALL NOT BE LIABLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR SYSTEMS OUTSIDE UPKID’S REASONABLE CONTROL. EXCEPT FOR ANY CHARGES PAYABLE UNDER THE AGREEMENT, THE MAXIMUM LIABILITY OF UPKID FOR ANY AND ALL LIABILITIES ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE MARK-UP CHARGES PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. UPKID AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS ARE A REASONABLE AND NEGOTIATED ALLOCATION OF RISK THAT ARE AN INTEGRAL PART OF THE AGREEMENT.
13. Miscellaneous
13.1 Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without Upkid’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. Upkid may assign this Agreement or any of its rights under this Agreement to its Affiliate, or any third party with or without your written consent. This Agreement shall be binding upon the successors, legal representatives and permitted assigns of the Parties. “Affiliate” shall mean an entity owned by, controlling, controlled by, or under common control with, directly or indirectly, one of the Parties.
13.2 Interpretation. Section titles are for convenience only and shall not affect the meaning or interpretation of this Agreement in any way. THIS AGREEMENT SHALL BE CONSTRUED WITHOUT REGARD TO THE PARTY OR PARTIES RESPONSIBLE FOR ITS PREPARATION AND SHALL BE DEEMED AS PREPARED JOINTLY BY THE PARTIES HERETO.
13.3 Counterparts. The Agreement may be executed and delivered by facsimile or electronic mail, including any number of counterparts, and shall constitute the final agreement of the Parties and conclusive proof of such agreement.
13.4 Relationship of the Parties. Upkid is an independent contractor of Customer, and this Agreement shall not be construed as creating a relationship of employment, agency, partnership, joint venture or any other form of legal association.
13.5 Modification or Waiver. Except as set forth in this provision, no amendment, modification, waiver of, failure to enforce strict performance of, delay or omission in the exercise of any rights hereunder, or consent with respect to, any provision of this Agreement shall be effective unless signed by an authorized representative for Upkid. No pre-printed information on invoices, purchase orders or shrink-wrap, click-wrap, browse-wrap or similar agreements from Customer shall have any force or effect between the Parties. A delay or omission by Upkid to exercise any right or power under this Agreement shall not be construed to be a waiver of that right or power.Notwithstanding the foregoing, Upkid reserves the right to change this Agreement, and add additional terms at any time, effective upon making the modified provisions available at this link (https://upkid.com/customer-agreement, the “Link”) or by notifying you directly. Customer is responsible for regularly reviewing the Link for modifications and updates to the Agreement. Continued use of the Service, including the Upkid Platform after any such changes are made to this Agreement shall constitute Customer’s consent to such changes. Other than making the changes available at the Link, Upkid does not assume any obligation to notify Customer of any changes to this Agreement, or the creation or modification of any additional terms.
13.6 Severability. If any provision of this Agreement conflicts with applicable law, that provision shall be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remaining provisions of this Agreement shall be valid and enforceable to the full extent permitted by law.
13.7 Survival. After this Agreement terminates, the terms of this Agreement that by their nature contemplate performance after termination shall survive and continue in full force and effect.
13.8 Rights and Remedies Cumulative. Unless expressly stated otherwise herein, all rights and remedies provided for in this Agreement shall be cumulative and in addition to, and not in lieu of, any other remedies available to either Party at law, in equity or otherwise.
13.9 Notices. Any notice required or permitted to be given hereunder shall be in writing and will be transmitted to these addresses: To Upkid, Inc.: Upkid, Inc., 3450 Triumph Blvd Suite 102, Lehi, UT 84043, with email copy to legal@upkid.com; To Customer: to any address the Customer provides to Upkid through the Upkid Platform or on the Form.
13.10 Force Majeure. Except for Customer’s obligations to pay any amounts due under this agreement, each Party shall be excused from performance under this Agreement and shall have no liability to the other Party for any period it is prevented from performing any of its obligations, in whole or in part, as a result of material delay caused by the other Party or by an act of God, war, terrorism, civil disturbance, court order, natural disaster and/or the failure or unavailability of the Internet.
13.11 Governing Law; Venue; Jurisdiction. This Agreement shall be governed by and construed in accordance with the applicable substantive laws of the state of California, without giving effect to its conflicts of laws rules. Except as otherwise specified in this paragraph, any legal action in any way arising out of this Agreement shall be brought solely and exclusively in the state courts of San Francisco County, California or the U.S. District Court for the Northern District of California. Each Party submits to the sole and exclusive personal jurisdiction of the courts in California generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other Party. Notwithstanding the foregoing, Customer agrees that it will submit any legal dispute between it and a Upkid Teacher to binding arbitration pursuant to the arbitration clause contained in the applicable Upkid Terms of Use (https://blog.upkid.com/terms).
13.12 No Third-Party Beneficiaries. Unless expressly set forth herein, nothing in this Agreement is intended to nor shall it confer upon on any Upkid Teacher or other person or entity, other than the Parties or their respective permitted assigns (as set forth in subsection 13.1 above), successors and legal representatives, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
13.13 Additional Policies. Customer’s use of the Upkid Service and Upkid Platform shall be subject to the applicable End User License Agreement on the Apple App Store or Google Play.
13.14 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof and supersedes any and all prior agreements, representations or communications regarding the subject matter of this Agreement.
13.15 Modifications to Application. Upkid reserves the right at any time to modify or discontinue, temporarily or permanently, the Service, Mobile App, or Portal (or any part thereof) with or without notice. You agree that Upkid shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, Mobile App, or Portal.
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