2024/04/01 DaySmart DaySmart Recreation Service Agreement
DaySmart Recreation Service Agreement
The City of Menifee (“Customer” or “You”) and Dash Platform, LLC, (“DaySmart
Recreation” or “DSR” or “We”) agree to enter into this Service Agreement which covers
all of the terms described herein, including the terms described below, any Exhibits, and
the DaySmart Terms of Service included below (collectively, the “Agreement”). This
Agreement will commence on November 1st, 2023 (“Effective Date”) and will be in force
for 20 months until June 30th, 2025 (the “Initial Term”).
Subscription Fees:
Subscription: 1% of processed revenue with a $5,000 Minimum Annual fee
o Starting January 1st, 2024, the monthly fee is calculated to be $536.10
based on 2023 revenue.
Support, Implementation and Training:
Service Tier (Pro): NO CHARGE
Payment for the monthly Service Tiers will begin the month following the execution of
the agreement.
Implementation and Training Fees: Monthly Service Tier (Pro)
Phone/Web-Based Services
E-Learning - Full Access for 1 year – NO CHARGE
In-Person Work (if requested by customer) - $900/day (plus expenses which will
include travel, hotel and $50/day per diem)
Additional Training Hours (if requested by customer) - $120/per hour
Implementation and Training work includes the following:
o Implementation Phase - business process review, database
configuration, and training plan.
o Training Phase - System Administrators, Program Leaders, Customer
Service Managers, Marketing, Financial, Bookings/Rentals, and Front
Desk.
GO LIVE - No Charge, Dedicated Customer Support person through the GO
LIVE period.
Post GO LIVE - No Charge, Dedicated Customer Support person for 30 days
post GO LIVE.
Customer Service and Support
The following Customer Support services are included in your monthly Service Tier
Fees:
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
Online Support Library - Includes videos, tutorials, white papers, how-to
guides, & help FAQ’s.
Online Chat - Communications via Chat with the DaySmart Recreation
Customer Service team.
Email - Communications via Email with the DaySmart Recreation Customer
Service team.
Phone - Communications via Phone with the DaySmart Recreation Customer
Service team if the Online Support Library, Chat and Email were unable to
resolve an issue.
Emergency Support - Available 24 hours a day, seven days a week to resolve
outage issues or compromised service issues.
Customer Support hours - 8:00 AM - 5:00 PM PST, Monday through Friday.
Email: rec-support@daysmart.com. After hours, the Customer Service team
monitors the Chat and Email inbound queues and respond as necessary.
Additional Fees
Credit Card Processing Fee: No Charge
Waivers: No Charge
Optional Features and Associated Fees
Payment Terms
Monthly Subscription Terms - Net 10 days Invoices are generated monthly
on the 1st of each month.
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
Monthly Service Tier Terms – Paid on the same schedule as the subscription
fees but invoicing of said service tier fees initiates on the month following the
execution of the agreement and will continue in accordance with the agreement
term(s) each month thereafter.
Notes:
Payment will be accepted by ACH funds transfer or by credit card; checks are
not accepted. If payment is made via ACH, the payment will be initiated by
DaySmart Recreation. Payment by credit card will incur a 3% fee.
After the Initial Term, DaySmart Recreation reserves the right to increase the
monthly service fee.
In the event of any delinquency in payment, we may, at Our discretion: (i) add
an additional 1.5% (or the highest amount allowed by law, whichever is lower)
per month to the fees, (ii) suspend your access to and use of DaySmart
Recreation Services, or (iii) terminate this Agreement upon notice. Charges
do not include any applicable sales, use or other taxes, which (other than Our
taxes on our income or profits) are the responsibility of the Client. You will be
liable for any fees incurred by Us in connection with the collection of unpaid
charges.
Termination
Either party may terminate this Agreement (i) upon sixty (60) days written notice to the
other party if the other party materially breaches any provision of this Agreement and
such breach remains uncured at the expiration of such period, or (ii) if the other party
becomes the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation, or assignment for the benefit of creditors.
Additionally, DaySmart Recreation may terminate this Agreement as set forth in the
Terms of Service. After the Initial Term, either party may terminate this Agreement with
90 days written notice.
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
I HAVE READ THE ABOVE AND AGREE TO BE BOUND BY THE TERMS
The City of Menifee
OFFICER NAME: Armando G. Villa
Title: City Manager
Signature:___________________________ Date:_____________________________
City of Menifee
APPROVED AS TO FORM:
OFFICER NAME: Jeffrey T. Melching
Title: City Attorney
Signature:___________________________ Date: _____________________________
City of Menifee
ATTEST:
OFFICER NAME: Stephanie Roseen
Title: Acting City Clerk
Signature:___________________________ Date: _____________________________
DaySmart Recreation
OFFICER NAME: Michael Kenney
Title: Senior Vice President of Sales
Signature:__________________________ Date:____________________________
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
4/1/2024
4/1/2024
4/1/2024
Terms of Service
Dash Platform, LLC dba DaySmart Recreation (“DaySmart Recreation”, “We”, ”Our” or
“Us”) provides its Services to you (“You” or “Your”) through its web site located at
daysmartrecreation.com (the “Site”), subject to these Terms. IF YOU DO NOT AGREE
TO ALL OF THESE TERMS, THEN DO NOT ACCESS THE SITE OR USE THE
SERVICES OR CONTENT. BY VIEWING OR USING ALL OR ANY PART OF THE
SERVICES OR THE SITE, OR DOWNLOADING ANY MATERIALS OR BY
COMPLETING ANY REGISTRATION PROCESS VIA THE SITE, YOU AGREE TO BE
BOUND BY THESE TERMS.
By accepting these Terms, or by accessing or using the Service or Site, You represent
and acknowledge that You have read, understand, and agree to be bound by these
Terms, and that the information You provide to DaySmart Recreation via the Service or
the Site is accurate, complete, and is Yours or within Your right to use. If You are entering
into these Terms on behalf of a company or another legal entity, You represent that You
have the authority to bind such entity and its subsidiaries and affiliates to these Terms. If
You do not have such authority, or if You do not agree with these Terms, Yo u must not
accept these Terms and may not use the Service.
You acknowledge that these Terms constitute an agreement between You and Us, even
though it is electronic and is not physically signed by You and Us, and that these Terms
govern Your use of the Service and supersede any prior version of these Terms.
Description Of Service
The “Service” includes the Site and applications (“Apps”), and services provided to You
through the Site including all software, data, text, images, sounds, videos, and other
content made available through the Site (collectively, “Content”). Any new features added
to or augmenting the Service are also subject to these Terms.
We make commercially reasonable efforts to have the Site, Apps and services available
24×7, except for: (a) planned downtime or (b) circumstances beyond Our reasonable
control, such as, but not limited to, acts of God, acts of government, acts of terror or civil
unrest, technical failures, or failures of our vendors or suppliers.
DaySmart Recreation shall schedule and attend a quarterly business review meeting with
Your designated representative. Your designated representative may consent in writing
to cancelling any particular meeting or meetings.
General Conditions/Access And Use Of The Service
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
Subject to the terms and conditions of these Terms, You agree to access and use the
Service only for Your business purposes as contemplated by these Terms, or as
otherwise authorized by DaySmart Recreation in a writing signed by DaySmart
Recreation (the “Sports Facilities Service Agreement”). Except Your limited right to
access and use the Service as expressly granted to You here, all rights, title and interest
in and to the Service and its components, including all related intellectual property rights,
will remain with and belong exclusively to Us and Our third-party vendors.
You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign,
distribute, or otherwise commercially exploit or make the Service available to any third
party, other than as expressly permitted by these Terms; (b) use the Service to process
data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any
sponsorship or association with Us, or otherwise attempt to gain unauthorized access to
the Service or its related systems or networks; (d) use the Service in any unlawful manner,
including but not limited to violation of any persons privacy rights, infringing any person’s
intellectual property rights, or sending spam or otherwise duplicative or u nsolicited
messages in violation of applicable law, (e) use the Service in any manner that interferes
with or disrupts the integrity or performance of the Service and its components; (f) attempt
to decipher, decompile, reverse engineer or otherwise discove r the source code of any
software making up the Service; (g) use the Service to knowingly post, upload, link to,
send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or
contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful
software; or (h) try to use, or use the Service in violation of these Terms.
You are responsible for all information, data, text, messages or other materials that You
post or otherwise transmit via the Service (“Your Data”). You are responsible for
maintaining the confidentiality of Your login and account, and are fully responsible for any
and all activities that occur under Your login or account. Your Data shall belong to you
and DaySmart Recreation shall obtain no rights thereto except to the right to derivative
data as specifically set forth herein. Upon request within ninety (90) days of termination
of this Agreement, DaySmart Recreation shall provide Your Data to you in a computer
readable format and media in a form mutually agreed by You and DaySmart Recreation.
Our failure to enforce at any time any provision of these Terms does not constitute a
waiver of that provision or of any other provision of these Terms.
Data Privacy And Security
In providing You the Service, We shall use commercially reasonable efforts to maintain
appropriate administrative, physical and technical safeguards designed to protect the
security, confidentiality and integrity of Your data. These safeguards include, where
applicable, encryption of Your data in transmission (using SSL or similar technologies),
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
except for external third party integrations that do not support encryption, which You may
link to the Service at Your choice.
You agree that We can access Your account information in order to provide you the
Service. We will not disclose such data except if compelled by law, permitted by Youor
pursuant to the terms of the Our Privacy Policy,as indicated in Exhibit A. .
Notwithstanding the foregoing, if DaySmart believes it is legally required t o disclose
your data, DaySmart shall provide you with at least five (5) business days’ notice before
disclosure, or the maximum time permitted by law whichever is less, prior to disclosure
so that you may seek a protective order at your own expense.
DaySmart Recreation will use commercially reasonable efforts to secure the storage,
transmission, and processing of Payment Data that flows through its systems. DaySmart
Recreation will use commercially reasonable efforts to use validated PCI DSS Service
Providers to facilitate the storage, transmission and processing of Payment Data.
DaySmart Recreation will use commercially reasonable efforts to maintain compliance
with PCI DSS requirements. At no point is cardholder data intentionally stored on Our
systems and at no point does intentionally unencrypted cardholder data flow through Our
network.
Subject to the limitations within these terms, We will use, and You hereby grant us the
right to use, Your data for the purpose of creating anonymized aggregated data. You
agree that We will have ownership of any derivative data created from such data, so long
as it is anonymized in such a way that it cannot reasonably be attributed back to You
and/or any of Your users. You agree that we have the right to use or license such
derivative data for any other purpose, including for DaySmart Recreation or third party
products or services.
Your data is hosted by Amazon Web Services in the U.S.A.
California Consumer Privacy Act of 2018 (“CCPA”). The terms in this section apply only
to Your customers that are California residents.
1. DaySmart Recreation will not sell personal information, defined to mean Personal
Information Processed by DaySmart Recreation in the course of providing services
under this Agreement, or any other confidential or proprietary data, information or
materials (collectively, “Your Data”) arising from or related to this Agreement. The
terms, “Selling”, “Personal Information”, and “Processing” shall have the meanings
as set forth in the CCPA; and
2. DaySmart Recreation will not retain, use, Sell, combine or disclose Your Personal
Information or Your Data for any purpose (other than for the specific purpose of
performing the services in this Agreement) and outside of the direct business
relationship between the parties associated with the Your Personal Information
and DaySmart Recreation.
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
3. To the extent any deidentified personal information is included in Your Personal
Information, DaySmart Recreation undertakes as follows:
4. DaySmart Recreation shall not make any attempts to re-identify the Deidentified
Personal Information.
5. DaySmart Recreation has implemented and will maintain technical safeguards that
prohibit re-identification of Deidentified Company Personal Information.
6. DaySmart Recreation has implemented and will maintain business processes that
specifically prohibit re-identification of information and prevent inadvertent release
of Deidentified Personal Information.
7. DaySmart Recreation will periodically reassess its technical safeguards and
processes to ensure that they are still adequate to prevent the re-identification of
information or inadvertent release of Deidentified Personal Information.
8. Consumer Requests. DaySmart Recreation shall, without undue delay,
acknowledge Your request or instruction rega rding the exercise of any consumer
privacy rights under the law, including without limitation, the CCPA (“Consumer
Requests”).
9. DaySmart Recreation will provide reasonable assistance to You to enable You to
respond to consumer requests to exercise their rights under the CCPA or other
applicable laws. If DaySmart Recreation receives a request from You to provide
access to a consumer’s Personal Information, which is Processed by DaySmart
Recreation, then, to the extent DaySmart Recreation is able to verify the
consumer’s identity based on information provided by You, DaySmart Recreation
will, without undue delay, provide You with access to such information using a
mutually acceptable format or mechanism.
10. If DaySmart Recreation receives a request from You regarding the opt out of a
Sale (as such term is defined under CCPA) of Your Personal Information of a
consumer, the Parties will discuss in good faith whether such request is relevant
to the Processing of Your Personal Information by DaySmart Recreation and th e
best manner to address such requests.
11. If DaySmart Recreation receives a request from You to return or delete Your
Personal Information of a consumer, which is Processed by DaySmart Recreation,
then, to the extent DaySmart Recreation is able to verify the consumer’s identify
based on information provided by You, and unless prohibited under applicable
laws, DaySmart Recreation will, without undue delay and, at Your election (i)return
a complete copy of all Your Personal Information in such format and manner
requested by You and (ii) comply with the request to delete by de identifying the
Your Personal Information or aggregating Your Personal Information.
12. If DaySmart Recreation receives a request from a consumer to exercise any of
the rights provided to the consumer under CCPA or applicable data protection
laws, then DaySmart Recreation will, without undue delay, respond to the
consumer with a response that will include: (i) an explanation that DaySmart
Recreation received the request but may not answer directly; (ii) a statement
directing the consumer to submit the request directly to You; and (iii) the Your
contact information. To the extent DaySmart Recreation is legally required to
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
provide a different response, DaySmart Recreation, to the extent permitted by such
applicable law, will inform You of that legal requirement at least five (5) business
days’ before disclosure, or the maximum time permitted by law whichever is less,
before it responds to the request so that you may seek a protective order at your
own expense. .
Intellectual Property Rights
We expressly reserve all rights, title and interest in and to all our patents, inventions,
copyrights, trademarks, domain names, trade secrets, know-how and any other
intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”).
The rights granted to You to use the Service under these Terms do not convey any
additional rights in the Service, or in any Intellectual Property Rights associated therewith.
You grant to Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and
perpetual license to incorporate into the Service or otherwise use any suggestions,
enhancement requests, recommendations or other feedback We receive from You. Our
product and service names, and logos used or displayed on the Service are Our
registered or unregistered trademarks (collectively, “Marks”), and You may only use such
Marks to identify yourself as a customer and user of the Service; provided You do not
attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness
of the Marks, use any confusingly similar marks, or use the Marks to disparage or
misrepresent Us, or Our services or products.
Third Party Services
External Sites. The Service may contain lin ks to, or otherwise may allow You to connect
to and use third party products, services or software under separate terms and conditions
(collectively, “Other Services”) in conjunction with Our Service. If You decide to access
and use Other Services, be advised that Your use is governed solely by the terms and
conditions of such Other Services, and We do not endorse, are not responsible for, and
make no representations as to such Other Services, their content or the manner in which
they handle Your data. We are not liable for any damage or loss caused or alleged to be
caused by or in connection with Your access or use of any Other Services, or Your
reliance on the privacy practices or other policies of Other Services.
Integration. The Service may contain featu res that enable various Other Services (such
as social media services like Facebook and Twitter) to be directly integrated into Your
experience. To take advantage of these features, You will be required to register for, or
log into, such Other Services on their respective websites. By enabling third party services
within the Service, You are expressly allowing Us to pass Your log-in information to these
Other Services for this purpose.
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
Cancellation And Termination
We reserve the right to (i) modify or discontinue, temporarily or permanently, any of the
Apps or the Service (or any part thereof) and (ii) refuse any/all current and future use of
the Service, or suspend or terminate your account if We believe that You have violated
these Terms. We will use commercially reasonable efforts to contact You directly via
email to warn You prior to suspension or termination of Your account. Any suspected
fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your
use of the Service, and may be referred to law enforcement authorities. You agree that
We are not liable to You, or any third party, for any modification, suspension or
discontinuation of the Service in accordance with this paragraph.
You my terminate this Agreement in the e vent we modify or discontinue any of the Apps
or the Service (or any part thereof) without your consent in a manner which materially and
detrimentally impacts your use of the Apps or the Services. In the event you terminate
this Agreement pursuant to this Paragraph, you will be refunded a prorated portion of fees
paid for the Apps or Service protected from the date of termination.
Training Cancellation/No Show/Late Show Fees:
Violation Tiers:
No notice, no show/Short Notice cancellation (within 24 hrs) - This deducts the full
scheduled training time from client’s allotted hours
Late show - The amount of time missed is deducted from client’s allotted hours
** After 15 minutes not present for the meeting your training is automatically
cancelled, and is deducted from your allotted hours
Cyber Security
DaySmart Recreation shall comply with best practices and industry standards related to
cyber-security and the Service, including but not limited to Payment Card Industry Data
Security Standard (PCI DSS). DaySmart Recreation will maintain at its own expense
cyber liability insurance in an amount not less than one million dollars ($1,000,000.00)
per occurrence covering any cyber security incidents which originates in or migrates from
DaySmart Recreation’s network, and impacts Your network or system. If the deductible
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
or self-insured retention exceeds twenty five thousand dollars ($25,000), it must be
approved in writing by You. Where DaySmart Recreation is required by law to attain and
maintain System & Organizational Controls (“SOC”)1 and SOC 2 compliance, or its
equivalent, for the Service, DaySmart Recreation shall maintain such compliance for the
duration of the Agreement, and shall provide a copy of Provider’s SOC 1 Type 2 and SOC
2 Type 2 compliance reports to You within thirty (30) days of execution of the Agreement
and annually thereafter during the term of the Agreement within thirty (30) days of such
reports being received by DaySmart Recreation. In the event that DaySmart Recreation
experiences a cyber security breach or incident, DaySmart Recreation shall notify You in
writing as soon as reasonably practicable.
Disclaimer Of Warranties
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND
NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”
BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT
PERMITTED BY LAW. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT
WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY,
SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE
OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY
WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Limitation Of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN
CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO
THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE
LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER
SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS,
LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY
SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE,
REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. THE LIMITATIONS
OF THIS SECTION DO NOT APPLY TO YOUR INFRINGEMENT OR
MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY
IN THESE TERMS, OUR (INCLUDING ANY OF OUR AFFILIATES) AGGREGATE
LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) CLAIMED BY YOU OR
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
ANY THIRD PARTY ARISING FROM OR RELATING TO OUR SERVICE OR SITE,
SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II)
PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS
PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE
ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER
THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN
THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN
SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY
OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE
LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Some states do not allow the exclusion of implied warranties or limitation of liability for
incidental or consequential damages, which means that some of the above limitations
may not apply to You. In these states, our liability will be limited to the greatest extent
permitted by law.
Indemnification
Indemnification by Us. We will indemnify and hold You harmless, from and against any
claim against You by reason of Your use of the Service as permitted hereunder, brought
by a third party alleging that the Service infringes a valid U.S. patent or copyright, or
misappropriates a third party’s trade secret, or arising from our violation of the “Cyber
Security” section hereunder (such claims, collectively, “Claim”). We shall, at our expense,
defend such Claim and pay damages finally awarded against You in connection therewith,
including the reasonable fees and expenses of the attorneys engaged by Us for such
defense, provided that (i) You promptly notify Us of the threat or notice of such Claim, (ii)
We have the sole and exclusive control and authority to select defense attorneys, defend
and/or settle any such Claim, and (iii) You fully cooperate with Us in connection therewith.
If Your use of the Service has become, or in Our opinion is likely to become, the subject
of any such Claim, We may at our option and expense (a) procure for You the right to
continue using the Service as set forth hereunder; (b) replace or modify the Servi ce to
make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate
these Terms and repay You any unused Service fees. We will have no liability or
obligation with respect to any Claim if such claim is caused in whole or in part by (i)
compliance with designs, data, instructions or specifications provided by You; (ii)
modification of the Service by anyone other than Us; or (iii) the combination, operation or
use of the Service with other hardware or software where the Service would not by itself
be infringing. The provisions of this Section state our entire liability to You and constitute
Your sole remedy with respect to a Claim brought by reason of Your permitted use of the
Service.
Indemnification by You. You agree to indemnify and hold Us harmless from and against
any claims against Us brought by a third party arising or resulting from Your breach of
these Terms, or Your or Your end users’ access to, use, misuse or illegal use of the
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
Service. We will provide You notice of any such claim, suit, or proceeding. You shall, at
your expense, defend such claim and pay damages finally awarded against Us in
connection therewith, including the reasonable fees and expenses of the attorneys
engaged by You for such defense, provided that (i) We promptly notify You of the threat
or notice of such claim, (ii) You have the sole and exclusive control and authority to select
defense attorneys, defend and/or settle any such Claim, and (iii) We fully cooperate with
You in connection therewith. The provisions of this Section state Your entire liability to
Us and constitute Our sole remedy with respect to a claim brought by reasons set forth
above.
The Limitation of Liability provided in this Agreement shall not apply to each party’s
indemnification obligations hereunder.
Assignment; Entire Agreement; Revisions
We may assign or transfer these Terms, in whole or in part, without restriction, provided
the assignee agrees to be fully bound by these Terms. You may assign or transfer these
Terms, in whole or in part, with Our prior written consent, which may be withheld in our
discretion provided that our consent shall not be unreasonably withheld. These Terms
supersede prior versions of these Terms, or any other discussions, agreements or
understandings by or among the parties (other than written agreements, such as a Sports
Facilities Service Agreement , expressly accepted and executed by both parties). We may
amend these Terms from time to time, in which case the new Terms will supersede prior
versions. We will notify You of any changes that have a material adverse effect on you,
and direct You to the latest version.
Severability
If any provision in these Terms is held by a court of competent jurisdiction to be
unenforceable, such provision shall be modified by the court and interpreted so as to best
accomplish the original provision to the fullest extent permitted by law, and the remaining
provisions of these Terms shall remain in effect.
Export Compliance And Use Restrictions
Content and software components of the Service are subject to U.S. export control and
economic sanctions laws. You agree to comply with all such laws and regulations as they
relate to such software and Content, and access and use of the Service. You shall not
access or use the Service if you are located in any jurisdiction prohibited by U.S. Laws,
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
and You shall also not provide access to the Service to any government, entity or
individual located in any such jurisdictions.
Relationship Of The Parties
The parties are independent contractors. These Terms do not create a partnership,
franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Survival
Sections (General Conditions/Access and Use of the Service), (Intellectual Property
Rights), (Billing, Plan Modifications and Payments), (Cancellation and Termination),
(Disclaimer of Warranties), (Limitation of Liability), (Indemnification), (Assignment; Entire
Agreement; Revisions), (Severability), (Export Compliance and Use Restrictions),
(Relationship of the Parties) and (Governing Law; Venue; Attorney’s Fees) will survive
any termination of these Terms.
Governing Law; Venue; Attorney’s Fees
These Terms shall be governed by the laws of the State of California without regard to
conflict of laws principles. Exclusive venue for any legal action shall be in the federal and
state courts of the State of California, Riverside County. We hereby expressly agree to
submit to the exclusive personal jurisdiction of such courts for the purpose of resolving
any dispute relating to Your access to or use of the Service. In the event of any legal
action between You and Us, the substantially prevailing party shall receive from the losing
party its reasonable costs and attorney’s fees incurred in the action and in any appea l.
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
Exhibit A
Privacy Policy
DaySmart Software, the makers of DaySmart Recreation, appreciate the trust you place
in us and we are committed to respecting your privacy and the security of your personal
information. Our privacy policy describes the information we collect and how we use it.
Whether you purchase products through DaySmart Recreation’s website or via mail or
phone, or which are delivered to you through the DaySmart Recreation Cloud website,
any personal information that you may share with us (and with the business partners
that help this site function or assist us in fulfilling your order) is kept absolutely private.
Types of Personal Information We May Gather
Purchases — When you place an order, you give us your name, address, phone
number, or e-mail address, and, in some cases, credit card information. You authorize
us to store your name and shipping address(es), and optionally, credit card and bill ing
information. If you purchase under a payment plan, you may authorize us to store your
credit card information.
Trial version requests — We need your name and email address and phone number in
order for you to download a trial version of our software.
We maintain the data that you provide us, along with a record of your purchases, in a
secure database.
Using Information We Collect
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
At DaySmart Software, Inc., we always want to provide you with the best possible
experience and fulfill your orders exactly as you’ve requested. In order to do this, we
use the information we collect to:
Process and track your order
Provide the products and services you request
Contact you about the status of an order
Contact you regarding promotional offers we believe will be of interest to you
Identify your product and service preference
Customize our communications to you
Provide information concerning product recalls or products you have purchased
Improve our merchandise selection and customer service
How We Use Cookies
As with most other websites, we collect and use the data contained in log files
comprised only of basic service interaction/page downloads and/or errors. We use web
sessions for the temporary storage of basic information to help display the appropriate
content on the page to you. Cookies are unique identifiers that we transfer to your
device to enable our systems and advertising partners to recognize your device and to
provide features such as retargeting personalized advertisements on other websites
based on your interaction with DaySmart Recreation product software sites. These
cookies do not collect personal information such as your name, email address, postal
address or telephone number.
Our Business Partners
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
In order to supply, ship, and track merchandise, we make your name and address
available to our hardware suppliers and such companies as Dell Computers, BlueStar,
United Parcel Service, Federal Express, and the U.S. Postal Service. We provide these
companies with only the information they need to supply merchandise that you have
ordered and perform their services. We do not authorize these business affiliates to use
your personal information for any other purpose. From time to time we provide the
information to trusted partners who work on behalf of or with DaySmart Recreation
under confidentiality agreements. These companies may use your personal information
to communicate with you about offers from DaySmart and our marketing partners.
However, these companies do not have any independent right to shar e this information
with any other party. Except as stated above, neither your name nor anything about you
is sold or shared with any other non-affiliated company or agency.
How We Use E-mail
When you provide us with your email address, we may send you emails necessary to
process your order or respond to a request.
Links to Other Sites
Occasionally, we provide links on our websites to other sites we think you will find useful
in your business. These sites operate independently of DaySmart Recreation and have
established their own privacy and security policies. For the best online experience, we
strongly encourage you to review these policies at any site you visit.
Cloud Services, Security, and Data Retention
It is our intent to protect against the loss, misuse, or alteration of information that we
have collected from you. We use a variety of current technologies and processes for the
protection of our customer data. For example, we store the personal information we
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
collect on computer systems with limited access, which are located in controlled
facilities. When we transmit highly confidential information (such as a credit card
number or password) over the Internet, we protect it through the use of encryption, such
as the Secure Socket Layer (SSL) protocol.
We permanently delete all personal information obtained in the course of delivery of
products and services to you through the DaySmart Software Cloud website when you
no longer subscribe to those products or services, after 90 days or immediately upon
your request. We limit the information we provide to outside companies with whom we
contract to only what they need to carry out their responsibilities. When you make a
purchase or request a trial on our website, your transactional information is transmitted
in a safe, encrypted format.
Privacy of Children on Our Web Site
Our website is not intended for use by children under the age of 13, and we do not
knowingly collect personal information from children under the age of 13. If a child has
provided our website with personally identifiable information, we ask that a parent or
guardian call (248) 491-0200 and we will delete the information about the child from our
files.
Your Consent
By using our website you consent to our use of information that is collecte d or submitted
as described in this online privacy policy.
Policy Changes
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
From time to time we may use customer information for unanticipated uses not
previously disclosed in our privacy notice. We may change or add to this privacy policy.
If our information practices change, we will post these changes on our website. We
encourage you to review our privacy policy periodically.
Specific Privacy Disclosures for the European Economic Area
This section applies to data processing activities of data subjects residing in the
European Economic Area as well as, regardless of residence, to the processing of any
such data occurring in the European Economic Area.
“Personal Data,” for purposes of this section, means any information relating to an
identified or identifiable natural person (“data subject”). An identifiable natural person is
one who can be identified, directly or indirectly, in particular by reference to an identifier
such as a name, an identification number, location data, an online identifier or to one or
more factors specific to the physical, physiological, genetic, mental, economic, cultural
or social identity of that natural person.
“Services” means any of our products, services, or deliverables.
“Site” means any website operated and controlled by us.
Pursuant to the European Union General Data Protection Regulation (GDPR), we
function as a “processor” for the Services we offer to our customers . The scope of
applicable data protections and processing for those Services are set forth in
contractual agreements with our customers and are therefore not covered by this
Privacy Notice.
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
In our controller role, we process certain Personal Data in order to maintain and provide
the Services to our customers, such as this website, and our customer contact nam es,
addresses, email addresses, phone numbers, and other contact information for
designated customer representatives or personnel (“Customer Relationship Data”). In
addition, we may send marketing materials or communications to potential or existing
customers (“Marketing Activities”). For purposes of Customer Relationship Data and
Marketing Activities, we function as a “controller.” Our disclosures with respect to our
processing of data as a controller are set forth in this section.
1. How We Collect and Use Personal Data
We collect data as described in the “Types of Personal Information We May Gather”
section above. We collect data when you submit it to us on our website or through other
forms and when you make purchases (including subscriptions), renew yo ur software
license, and when we activate our software for you or service your account. We also
use third parties such as Google Analytics to provide customer analytics on our site. In
the future, we may also use third parties for our own advertising purposes to retarget
ads to our site visitors
2. How We Disclose Personal Data
Our disclosure is limited to circumstances where we are permitted to do so under
applicable European and national data protection laws and regulations. We share data
with companies as necessary to obtain CRM and cloud services and for order fulfillment
whose practices are in line with GDPR.
3. Legal Basis for Processing
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
We collect and process your Personal Data for a variety of different purposes which are
set out in further detail in this section.
In some cases, we will ask for your consent so that we may process your Personal
Data. However, in certain circumstances, applicable data protection laws allow us to
process your Personal Data without needing to obtain your consent.
3.1. Processing Personal Data Where Consent Not Required
In certain cases, separate consent is not required, including:
For the performance of a contract.
To perform our contractual obligations to you, including our fulfilling orders or purchases
you have made, contacting you in relation to any issues with your order or use of our
Services, in relation to the provision of our Services, or where we need to provide your
Personal Data to our service providers related to the provision of the Services, including
for license activation and management.
To comply with legal obligations.
To comply with laws, regulators, court orders, or other legal obligations, or pursuant to
legal process.
Legitimate Interests.
To operate our business and provide our Services (other than in performing our
contractual obligations to you) for our “legitimate interests” and for the purposes of
applicable law, except where such interests are overridden by the interests or
fundamental rights and freedoms of the data subject which require pro tection of
personal data. Legitimate interests may include:
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
To communicate with you regarding the Services and to address and respond to your
requests, inquiries, and complaints.
For our direct marketing purposes.
To send you surveys in connection with our Services.
To assist in the investigation of suspected illegal or wrongful activity, and to protect and
defend our rights and property, or the rights or safety of third parties.
To develop, provide, and improve our Services.
To enforce our Terms of Use, License Agreements, or this Privacy Notice, or
agreements with third parties.
3.2. Consent For Processing
In cases where we are not already authorized to process the Personal Data under
applicable law, we may ask for your consent to process your Personal Data, including:
Marketing
We may ask for your consent for our partners or vendors to contact you by telephone,
SMS, post and/or email about other offers, products, promotions, developments or
Services which we think may be of interest to you and for other marketing purposes. For
our own marketing, we will contact you about our Services when you voluntarily provide
us your information on our Site.
Use of Cookies
Our Site uses cookies and similar technologies to improve user experience and for
analytics. We use our own cookies for authentication and session management as well
as to understand how our website is used
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
We use third-party cookies for analytics. Specifically, we use Google Analytics to
improve our site. We do not use Google Analytics to personally identify you. More
information about Google’s services, including Google Analytics, can be found here:
https://www.google.com/policies/privacy/partners/.
If you want to block or delete cookies, most major browsers will allow you to do this
through settings.
4. Withdrawing Your Consent
Where consent is the basis of processing, you may at any time withdraw the consent
you provide for the processing of your Personal Data by contacting us at
support@daysmart.com, provided that we are not required by applicable law or
professional standards to retain such information.
If you want to stop receiving future marketing messages and materials, you can do so
by clicking the “unsubscribe” link included in our email marketing messages.
5. Data Subject Rights
You have the right in certain circumstances to request confirmation from us as to
whether or not we are processing your Personal Data. Where we are processing your
Personal Data, you also have the right to request access to, modification of, or deletion
of such Personal Data. You also have the right in certain circumstances to receive the
Personal Data concerning you that you provided to us, to restrict processing of your
Personal Data, or to transmit such data to another controller.
As permitted by law, certain data elements may not be subject to access, modification,
portability, restriction, and/or deletion. Furthermore, where permissible, we may charge
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101
EXHIBIT A
for this service. We will respond to reasonable requests as soon as practicable and as
required by law.
6. Data Retention
We will retain your Personal Data for as long as you maintain an account or subscription
agreement or as otherwise necessary to provide you the Services. We will also retain
your Personal Data as necessary to comply with our legal obligations, resolve disputes,
and enforce our agreements.
7. Right to Lodge a Complaint With A Supervisory Authority
You may have a right to lodge a complaint with a supervisory authority.
DocuSign Envelope ID: B8DB303D-DFCB-491E-BB5B-9D8255844101