Kidz Central Station Class Provider Agreement
Acceptance of Agreement and Changes to Agreement
This Agreement may be modified, in our sole discretion, from time to time. Any modifications will be effective immediately upon posting by KCS on the KCS Site and you hereby agree to any modifications. You affirm that you will review this Agreement periodically so you are aware of any and all modifications made to this Agreement. If the modified terms of this Agreement are not acceptable to you, your only recourse is to cease using the KCS Site and the Services. Further, this Agreement incorporates by reference any fee and commission schedule or other agreement with respect to fees or commission agreed to by you and KCS (such fee and commission schedule, as may be amended, modified or supplemented from time to time, the “Fee Schedule”); provided that if there is any inconsistency between this Agreement and the Fee Schedule, then the terms and provisions of the Fee Schedule shall govern and control.
Class Provider Content
We, in our sole discretion, permit class providers to submit, post, upload, publish, or transmit Content. By making available any Content through the KCS Site, you automatically grant (and represent and warrant that you have the right to grant) to KCS and its affiliates and successors, a worldwide, irrevocable, perpetual, non-exclusive, fully paid, transferable, royalty-free license, with the right to sublicense, publicly display, reproduce, reformat, use, copy, adapt, distribute, license, sell, transfer, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Content on or by means of the KCS Site. KCS does not claim any ownership rights in any such Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such Content. You also irrevocably grant the users of the KCS Site the right to access, display, view and store your Content in connection with their use of the KCS Site. You irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution against KCS and the users of the KCS Site with respect to your Content. You also represent and warrant that public posting and use of your Content by KCS will not infringe or violate the rights of any third party or, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Responsibility for Class Provider Content
You agree that you are solely responsible for all your Content that you make available on or by means of the KCS Site. You assume any and all risks associated with all Content you make available on or by means of the KCS Site, including, without limitation, any user’s reliance on its accuracy, completeness, quality, usefulness, or reliability. You represent and warrant that you own, or have the necessary consents and releases to use and authorize the use of, your Content as described in this Agreement. You agree that you may not state or imply that your Content is in any way sponsored or endorsed by KCS.
Monitoring of KCS Site and Editing/Removal of Content
All software used on the KCS Site is the property of KCS or its software suppliers and protected by United States and international copyright laws and other applicable laws. We also own the KCS Site, the trademarks, service marks and domain names displayed on the KCS Site (unless otherwise noted), whether registered or unregistered, and all text, logos, photographs, graphics, images, music, software, audio, video, location data, information or other materials, and all other forms of data or communication (other than your Content and any other Content supplied to us by third parties) (collectively, the “KCS Content”) and the KCS Content is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in this Agreement, KCS and its licensors exclusively own all right, title and interest in and to the KCS Site and in the KCS Content, including all associated intellectual property rights. You represent and warrant that you will not remove, alter, conceal or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the KCS Site nor shall you use, sell, transfer, reproduce, download, distribute, publicly display, edit, publish, copy, print, license or create derivative works from any of the KCS Content without the prior written consent of KCS.
Provider Account and Class Listings on the KCS Site
You must create an account with KCS in order to represent your business on the KCS Site and to have the ability to upload, review, and update your Content on the KCS Site. In connection with such account, you will create a password to access your account and you will hold such password in confidence and be solely responsible for any disclosures of your password or use thereof by any person who may authorize and any unauthorized third party. We reserve the right to disable any password upon our reasonable belief that the security with respect to such password has been or will be compromised. You are also responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time.
In creating or modifying your account, you must be an authorized representative of the business subject to such account, and you must provide true and accurate information about your business including, without limitation, with respect to each class listed on the KCS Site, a description, the price, the location, the duration, and any policies. All fees for classes listed on the KCS Site must be posted in U.S. dollars. You agree not to list your classes on the KCS Site at a price that is higher than the price for the same class offered to the general public (excluding discounts and special promotions).
You hereby agree to promptly respond (in no event to exceed twenty-four (24) hours from the time of a request or an inquiry ) to our or a Purchaser’s request or inquiry with respect the availability of a class or a class schedule. You acknowledge that your failure to timely respond to our or a Purchaser’s request or inquiry will be adverse to KCS and the KCS Site and, accordingly, KCS shall be able to take any and all action as it deems appropriate, in its sole discretion, to address your continued failure to respond to any request or inquiry, with such actions including, without limitation, KCS’s ability to remove you from the KCS Site and providing monetary or other reimbursement or compensation to a Purchaser.
Cancellations, Refunds and Credits
You will make available to any user of the KCS Site your cancellation and refund policy (and any updates thereto) and display such policy or a link thereto on the KCS Site and you hereby agree to process cancellations, credits and refunds of classes booked through the KCS Site in accordance with such policies. You are solely responsible for issuing refunds or credits in accordance with your policies to users of the KCS Site that enroll in one or more of your classes. Any fees charged by KCS to you are non-refundable, even in the case of a cancellation. In the event that you choose to cancel or not provide a service or class that was originally offered by you through the KCS Site, you are solely responsible for contacting each user who enrolled for such service or class through the KCS Site to inform him/her of the cancellation.
Payment of Fees and Taxes
We are a service through which a Purchaser may find and enroll children in classes listed on the KCS Site. You authorize KCS to collect the total amount of any registration or other fees and expenses related to the classes or services you list on the KCS Site. KCS will charge the Purchaser’s credit card and will remit payment to you by check on the 15th day and 30th day of each calendar month (or the next succeeding business day if such 15th day or 30th day is not a business day) for the total charges collected on your behalf minus any commissions and service fees assessed in accordance with the fees set forth on your Fee Schedule. All payments will be made in U.S. dollars.
You are solely responsible for and will pay any and all sales, use, or excise taxes, assesments or other liabilities chargeable by a governmental authority as a result of any service provided under this Agreement other than taxes on KCS’s income.
You agree to the terms and conditions set forth in the Fee Schedule and agree that you have reviewed such Fee Schedule. We may make changes to such Fee Schedule after we provide you with at least 30 days notice of such changes. Any fees owed to us by you shall be debited from amounts payable by us to you. You hereby acknowledge that in the event of any termination of this Agreement or a revocation of your access to or use of the KCS Site, the Services or your account you shall remain liable for all fees, commissions and other amounts due to KCS hereunder.
Class Provider Responsibility
KCS acts on behalf of you in listing classes and activities offered by you and registering children for such classes and activities and processing payments for such classes and activities. You shall be fully and solely responsible for any and all damages, injuries, illnesses, liabilities, claims, and costs and expenses suffered by or in respect of any person or entity, caused in whole or in part by you or your classes, activities and services. You agree that KCS has no control over and does not guarantee the quality, safety or legality of classes or activities listed on the KCS Site, the truth or accuracy of your listings or Content or your ability to offer classes or activities.
Reviews and Purchaser Feedback
KCS will solicit feedback and reviews from Purchasers who use the KCS Site. A Purchaser’s feedback with respect to, and review of, you, your classes or activities, your services, your staff or any other matter may be made available to the general public through a posting on the KCS Site and, in our sole discretion, such feedback and reviews may be made available directly to you. In our sole and absolute discretion, we may remove any Purchaser feedback or review. KCS shall have no liability to you and you hereby release KCS, its subsidiaries, affiliates, any related companies, joint ventures, and partners, and the officers, directors, members, employees, agents and representatives of each of them from any and all claims, damages and liabilities in respect of any Purchase feedback or review.
Term and Termination
This Agreement will be effective and in full force as of the earliest of the date on which you begin using the KCS Site or the Services, the date on which you create an account on the KCS Site or the date on which you accept the terms of conditions of this Agreement by signing the Fee Schedule or by electronically accepting this Agreement.
You hereby acknowledge and agree that KCS may, in its sole discretion, discontinue providing the Services or access to the KCS Site, at any time, with or without notice to you; if KCS discontinues the Services or the KCS Site, such will result in an automatic termination of this Agreement. KCS shall have no liability to you for any discontinuance described above.
KCS reserves the right to revoke, with or without case, your access to the KCS Site or your use of the KCS Site or the Services at any time and to terminate this Agreement (with or without notice to you).
You may terminate or cancel your account at any time by emailing us at email@example.com. Any suspension, termination or cancellation will not affect your obligations to KCS under this Agreement (including, without limitation, liability obligations, indemnification and limitation of liability), which are intended to survive such suspension, termination or cancellation.
After any termination by you or KCS, you acknowledge and agree that KCS shall have no further obligation to provide access to you of the KCS Site or the Services. Upon termination, all licenses and other rights granted to you by KCS will immediately cease. KCS is not liable to you or any third party for termination of the KCS Site or the Services or of your use of the KCS Site or the Services.
DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE KCS SITE, SERVICES AND THE KCS CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KCS AND ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS OR REPRESENTATIVES EXPLICITLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
KCS DOES NOT REPRESENT OR WARRANT AS TO THE QUALITY OF ANY PRODUCTS OR SERVICES RECEIVED IN CONNECTION WITH YOUR USE OF THE KCS SITE AND SERVICES, INFORMATION OR CONTENT PROVIDED BY OR OBTAINED THROUGH THE KCS SITE OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY KCS CONTENT, OR INFORMATION OBTAINED THROUGH THE KCS SITE OR SERVICES, INCLUDING INFORMATION PROVIDED BY A PURCHASER. KCS DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE KCS SITE AND IN THE KCS CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE KCS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KCS ALSO MAKES NO WARRANTY THAT THE KCS SITE, SERVICES OR KCS CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON A SECURE BASIS. KCS DOES NOT GUARANTEE THAT YOU WILL BE ABLE ACCESS OR USE THE KCS SITE OR SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KCS OR THROUGH THE KCS SITE, SERVICES, OR KCS CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. KCS SHALL FURTHER HAVE NO RESPONSIBILITY OR LIABILITY FOR THE CANCELLATION OR RESCHEDULING OF ANY CLASS OR ACTIVITY BOOKED THROUGH THE KCS SITE BY ANY PURCHASER.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE KCS SITE, SERVICES AND KCS CONTENT REMAINS WITH YOU. UNDER NO CIRCUMSTANCES WILL KCS, ITS AFFILIATES OR ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, DIRECT, INDIRECT, OR PUNITIVE DAMAGES OR ANY OTHER LOSS OR INJURY THAT RESULTS FROM, ARISING OUT OF OR IN CONNECTION WITH USE, OR THE ABILITY TO USE, OF THE KCS SITE, THE SERVICES OR KCS CONTENT, EVEN IF KCS OR ANY AUTHORIZED REPRESENTATIVE OF KCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KCS OR ITS AFFILIATES OR ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY THIRD-PARTY PARTNERS OR SUPPLIERS HAVE ANY LIABILITY TO YOU FOR DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE KCS SITE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, OR OTHERWISE).
THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Indemnification and Release
You hereby acknowledge and agree that you will defend, release, indemnify and hold KCS, its subsidiaries, affiliates, any related companies, joint ventures, and partners, and the officers, directors, members, employees, agents and representatives of each of them harmless from and against any and all claims, liabilities, damages, losses and expenses, including, without limitation, all legal fees and expenses, arising out of or resulting from (i) your access to or use of the KCS Site and the Services; (ii) your Content; (iii) your interaction and relationship with a Purchaser or the child enrolled by a Purchaser in a class provided by you; (iv) your breach or violation of this Agreement; (v) any services, classes or activities provided by you to a Purchaser (or a child enrolled by a Purchaser in a class you provide) resulting from your use or Purchaser’s use of the KCS Site or the Services; or (vi) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. This provision shall survive the termination of this Agreement.
In the event that you have a dispute with a Purchaser, you release KCS (and our officers, directors, members, agents, parent, subsidiaries, joint ventures, related companies, agents, representatives and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Notices and Communications
Any notices or other communications permitted or required under this Agreement or otherwise will be made in writing via email. All notices and communications sent to KCS shall be sent to firstname.lastname@example.org. All notices and communications sent to you shall be sent to your email address set forth in your account set up on the KCS Site. You hereby agree to provide immediate written notice to KCS of any change in your email address. For notices and communications sent by email, the date of receipt of such notice or communication shall be deemed the date on which such notice or communication is transmitted, or if such date is a non-business day, on the immediately succeeding business day. At no time shall you opt-out of receiving any email or other electronic communications from KCS.
This Agreement, together with the Fee Schedule, constitutes the entire agreement between you and KCS and this Agreement, together with the Fee Schedule, supersedes and replaces any and all prior agreements and understandings (whether written or oral) between you and KCS regarding the Services and the KCS Site, and all matters related thereto, including, without limitation, your use of the KCS Site and the Services.
You may not assign or transfer this Agreement, your rights and obligations under this Agreement or your account, without the prior written consent of KCS. Any assignment or transfer by you without the prior written consent of KCS shall be null and void. KCS shall have the right to assign or transfer this Agreement without restriction. This agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
Governing Law; Dispute Resolution
This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the laws of the State of New York.
You consent to personal jurisdiction, and agree to bring all actions, exclusively in state and federal courts located in New York County, New York. Notwithstanding anything to the contrary contained in this section “Governing Law/Dispute Resolution”, in the event you bring a lawsuit seeking damages (other than those damages available in the small claims division of the Civil Court of New York City), you shall submit your dispute to be resolved by binding arbitration with three arbitrators pursuant to the rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the KCS, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Neither party shall be deemed to be, or represent the other party as, an employee, agent, or subcontractor of the other party. Neither party will represent that it has any authority to assume or create any obligation, whether express or implied, on behalf of the other party.
Effective August 15, 2012