Terms of Service

Popsicle Terms of Service

1. Your agreement with Popsicle

1.1. The agreement between your organization, (the “School”) and SimplyAfterschool Inc. or its successors (the “Service”) is governed by this agreement (the “Terms”).

1.2. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that Popsicle will treat your use of the Service as acceptance of the Terms from that point onwards.

1.3. You may not use the Service if you are a person barred from receiving the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 13, as the Service is not intended for children under 13.

1.4 If these terms are accepted by a person that represents a company or organization, when you accept the terms, the terms are accepted by all members of the organization, employees of the company and/or its affiliates, including but not limited to its schools.

1.5 Contact: You can contact us for everything related to this agreement at help@getpopsicle.com.

2. Your Account and Use of the Service

2.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account.

2.2. Your use of the Service must comply with all applicable laws, regulations and ordinances.

2.3. You agree not to (a) access (or attempt to access) the Service by any means other than through the interface that is provided by Popsicle in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with Popsicle, or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).

3. Service Policies

3.1. Prohibited Content: The Content displayed and/or processed through your Application or other web site utilizing the Service shall not contain any of the following types of content: (a) Content that infringes a third party’s rights (e.g., copyright) according to applicable law; (b) Pornographic, obscene or excessively profane content; (c) Hate-related or violent content; (d). Content advocating racial or ethnic intolerance; (e) Content intended to advocate or advance computer hacking or cracking; (f) Gambling; (g) Other illegal activity, including without limitation illegal export of controlled substances or illegal software; (h) Drug paraphernalia; (i) Phishing; (j) Malicious content; (k) Other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights.

3.2. Prohibited Actions: In addition to (and/or as some examples of) the violations described in the Terms, you may not and may not allow any third party, including your end users, to:

3.2.1 Generate or facilitate unsolicited commercial email (“spam”). Such activity includes, but is not limited to: (a) sending email in violation of the CAN-SPAM Act or any other applicable anti-spam law; (b) imitating or impersonating another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (c) data mining any web property to find email addresses or other user account information; (d) sending unauthorized mail via open, third-party servers; (e) sending emails to users who have requested to be removed from a mailing list; (f) selling, exchanging or distributing to a third party the email addresses of any person without such person’s knowing and continued consent to such disclosure; and (g) sending unsolicited emails to significant numbers of email addresses belonging to individuals and/or entities with whom you have no preexisting relationship.

3.2.2 Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content

3.2.3 Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;

3.2.4 Conduct or forward pyramid schemes and the like;

3.2.5 Transmit content that may be harmful to minors;

3.2.6 Impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent yourself or the source of any email;

3.2.7 Illegally transmit another’s intellectual property or other proprietary information without such owner’s or licensor’s permission;

3.2.8 Use the Service to violate the legal rights (such as rights of privacy and publicity) of others;

3.2.9 Promote or encourage illegal activity;

3.2.10 Interfere with other users’ enjoyment of the Service;

3.2.11 Sell, trade, resell or otherwise exploit the Service for any unauthorized commercial purpose;

3.2.12 Modify, adapt, translate, or reverse engineer any portion of the Service;

3.2.13 Remove any copyright, trademark or other proprietary rights notices contained in or on the Service;

3.2.14 Reformat or frame any portion of the web pages ;

3.2.15 Use the Service in connection with illegal peer-to-peer file sharing;

3.2.16 Display any content on the Service (including but not limited to the customizable login page) that contains any pornographic, hate-related or violent content or contain any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; or

3.2.17 Modify any logos or brand features without permission.

3.2.18 Use the Service, or any interfaces provided with the Service, to access any product or service in a manner that violates the terms of service or other terms and conditions for use of such product or service.

3.3 Data Retention:

3.3.1 Essential Records: Popsicle will maintain inactive records, including but not limited to facilities, accounts, guardians, students, staff, vendors for a minimum of three years

3.4 Data Portability

3.4.1 Data with regards to section 10.4 will be exported in industry standard format.

3.4.2 An effort will eventually be made to adhere to industry standards but those standards are still evolving so this is not guaranteed.

4. Privacy

4.1 Personal Information

4.1 Sensitive Data: We encrypt all sensitive data before we store them in data centers secured by our service provider so that they cannot be viewed during routine maintenance.

4.2 Uses: We use this information internally to deliver the best possible service to you, such as improving the Popsicle user interface and maintaining a consistent and reliable user experience.

4.3 Popsicle adheres to the US Safe Harbor privacy principles. For more information about the Safe Harbor framework or our registration, see the Department of Commerce’s website.

5. Use of the Service

5.1 Purpose: The service will be used for the sole purpose of administering the operations of one school or daycare or childcare center with one or more campuses.

5.2 Duration: By registering for use of our service either on Popsicle website or it’s apps you have agreed to these terms of service.

5.3 Fees:

5.4 Confidentiality: The parties recognize that the number of active students is shared knowledge that will be used only for billing computations, and it is otherwise proprietary customer information governed by the terms of section 8.3

5.5 The service will initiate a trial period. During the trial period you will ensure that the service will meet your requirements

6. Proprietary Rights

6.1 You acknowledge and agree that Popsicle (or Popsicle’s licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

6.2 Unless you have agreed otherwise in writing with Popsicle, nothing in the Terms gives you a right to use any of Popsicle’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

6.3 Except as provided in Section 8, Popsicle acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Popsicle, you agree that you are responsible for protecting and enforcing those rights and that Popsicle has no obligation to do so on your behalf.

7. License from Popsicle and Restrictions

7.1 You may not (and you may not permit anyone else to): (a) attempt to disable or circumvent any security mechanisms used by the Service or any Application; (b) upload or otherwise process any malicious content to or through the Service.

7.2 Unless Popsicle has given you specific written permission to do so (e.g., through an open source software license), you may not assign (or grant a sub-license of) your rights to use the Popsicle Software, grant a security interest in or over your rights to use the Popsicle Software, or otherwise transfer any part of your rights to use the Software.

8. License from you

8.1 Popsicle claims no ownership or control over any of your Content. You retain copyright and any other rights you already hold in the Content, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Service you give Popsicle (or its licensors) a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Popsicle (or its licensors) to provide you with the Service in accordance with its Privacy Policy.

8.2 You agree that Popsicle, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.

8.3 Popsicle acknowledges that in the course of providing the service or support for it, its associates might be exposed to customer data and other customer information. Unless the customer specifies otherwise in writing, such information must be treated as proprietary to the customer and not disclosed to other third parties, including but not limited to customer’s non authorized staff and the customer’s customers.

9. Software Updates and availability of service

9.1 The Software and apps which you use may automatically download and install updates from time to time from Popsicle (or its licensors). These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Popsicle to deliver these to you) as part of your use of the Service.

9.2 Popsicle will make commercially reasonable efforts to keep the service up and running at all times. However, the service might need to be occasionally unavailable for maintenance. In such cases, Popsicle will make commercially reasonable efforts to bring the service down for maintenance during non-business hours. We will also make commercially reasonable efforts to announce routine maintenance with advance notice.

10. Modification and Termination of the Service

10.1 Popsicle is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which Popsicle provides may change from time to time without prior notice to you, subject to the terms in Sections 4 and 10.2. Changes to the form and nature of the Service will be effective with respect to all versions of the Service (including the Deprecated Version of the Service); examples of changes to the form and nature of the Service include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.

10.2 If Popsicle in its discretion chooses to cease providing the current version of the Service whether through discontinuation of the Service or by upgrading the Service to a newer version, the current version of the Service will be deprecated and become the Deprecated Version of the Service. Popsicle will issue an announcement if the current version of the Service will be deprecated. For a period of 2 months after an announcement (the “Deprecation Period”), Popsicle will use commercially reasonable efforts to continue to operate the Deprecated Version of the Service and to respond to problems with the Deprecated Version of the Service deemed by Popsicle in its discretion to be critical. During the Deprecation Period, no new features will be added to the Deprecated Version of the Service. Popsicle reserves the right in its discretion to cease providing all or any part of the Deprecated Version of the Service immediately without any notice if: (A) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or (B) Popsicle is required to do so by law (for example, due to a change to the law governing the provision of the Deprecated Version of the Service); or (C) the Deprecated Version of the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires Popsicle to change the way Popsicle provides the data or services through the Deprecated Version of the Service; or (D) providing the Deprecated Version of the Service could create a substantial economic burden as determined by Popsicle in its reasonable good faith judgment; or (E) providing the Deprecated Version of the Service could create a security risk or material technical burden as determined by Popsicle in its reasonable good faith judgment.

At any time prior to discontinuing the current version of the Service or upgrading to a new version of the Service, Popsicle may, in its discretion as part of its continuing innovation to provide the best possible experience for its users, label certain features or functionality of the Service as “experimental” or “beta”. This Section 10.2 of the Terms will not apply to any features or functionality labeled as “experimental” or “beta”.

10.3 You may discontinue your use of the Service at any time provided you fulfill the commitments outlined in section 5. Popsicle may, at any time, terminate your use of the Service if (A) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or (B) Popsicle is required to do so by law (for example, due to a change to the law governing the provision of the Service); or (C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires Popsicle to change the way Popsicle provides the data or services through the Service; or (D) providing the Service could create a substantial economic burden as determined by Popsicle in its reasonable good faith judgment; or (E) providing the Service could create a security risk or material technical burden as determined by Popsicle in its reasonable good faith judgment.

10.4 If Popsicle suspends or terminates your use of the Service with cause (or you voluntarily discontinue your use of the Service), you will have access to, and the ability to export, your Content for a period of ninety (90) days following such suspension or termination. Fees will continue to be assessed for usage of the Service during the 90 day period. Notwithstanding the foregoing, the rights set forth in this Section 10.4 are subject to your payment of any outstanding fees due upon and after termination for your use of the Service.

10.5 Upon any termination of the Service under Sections 4 or 10 , these Terms will also terminate, but Sections 6.1, 11, 12, 13, and 17 shall continue to be effective after these Terms are terminated.

11. EXCLUSION OF WARRANTIES

11.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT Popsicle’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

11.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.”

11.3 Popsicle, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Popsicle, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.

12. Limitation of Liability

12.1 SUBJECT TO SECTION 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT Popsicle, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

12.2 THE LIMITATIONS ON Popsicle’s LIABILITY TO YOU IN PARAGRAPH 12.1 ABOVE SHALL APPLY WHETHER OR NOT Popsicle HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

13. Indemnification

13.1 You agree to hold harmless and indemnify Popsicle, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively “Popsicle and Partners”) from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Popsicle will provide you with written notice of such claim, suit or action.

14. Policies Regarding Copyright and Trademarks

14.1 You agree to respect copyrights and trademarks per the applicable law and set up required processes to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”).

15. Other Content

15.1 The Services may include hyperlinks to other web sites or content or resources or email content. Popsicle may have no control over any web sites or resources which are provided by other companies or persons.

15.2 You acknowledge and agree that Popsicle is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

15.3 You acknowledge and agree that Popsicle is not liable for any loss or damage which may be incurred by you or users of the Service as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

16. Changes to the Terms

16.1 Popsicle may make changes to the Terms from time to time. When these changes are made, Popsicle will make a new copy of the Terms available in the service.

16.2 You understand and agree that if you use the Service after the date on which the Terms have changed, Popsicle will treat your use as acceptance of the updated Terms.

17. General Legal Terms

17.1 The Terms constitute the whole legal agreement between you and Popsicle and govern your use of the Service (but excluding any services which Popsicle may provide to you under a separate written agreement), and completely replace any prior agreements between you and Popsicle in relation to the Service.

17.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

17.3 If Popsicle provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.

17.4 You agree that Popsicle may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.

17.5 You agree that if Popsicle does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Popsicle has the benefit of under any applicable law), this will not be taken to be a formal waiver of Popsicle’s rights and that those rights or remedies will still be available to Popsicle.

17.6 Popsicle shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

17.7 Governing Law; Dispute Resolution

Parties agree that all matters related to the event, including all disputes, will be governed by the laws of the United States and by the laws of the State of California without regard to its conflicts of laws provisions. Parties agree to the personal jurisdiction by and venue in the state and federal courts in Santa Clara County, California, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within thirty (30) days after the end of the event, or such claim or cause of action is barred. In the event of any controversy or dispute between the parties arises the parties shall attempt, promptly and in good faith, to resolve any such dispute. If they are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.

18. Billing Program Payment Terms

Popsicle provides a Payment and Billing System as described in this Section 18 (the “Billing Program”). The Billing Program allows schools, preschools, daycare centers, and activity providers (“Schools”) to invoice parents and/or other parties making payments on behalf of a student (“Authorized Payors”) for the services that they provide and for other related fees, expenses, and applicable taxes, transactions fees, billing fees and other related charges (collectively “School Fees”), and to facilitate payment of School Fees by Authorized Payors.

Authorized Payors

If you, as an Authorized Payor, choose to use the Billing Program, the Billing Program shall be considered part of the Services (as defined in Section 1) and the Software and will be subject to the Terms. In addition, by using the Billing Program you are also agreeing to the terms set forth in this Section 18.

The Billing Program is solely designed to facilitate payment of School Fees by Authorized Payors. Popsicle does not control, and makes no representation or warranties regarding, these services provided by Schools nor the School Fees charged by Schools.

The Billing Program will enable the School to invoice you for School Fees. Although the Billing Program will enable you to make payments to the School, you are solely responsible ensuring the accuracy and timeliness of all invoices and payments, and for any late fees or other charges assessed by the School for failure to make timely payments. Popsicle is not responsible for delay in payments and processing issues. In the event of an overpayment or other payment issues require that a refund be made to you, Popsicle will issue refunds (less applicable transaction fees) only as directed by the School, and all refund issues much be resolved directly between the you and the School. Popsicle or its payment processor may hold part or all of the payments in case we believe that the Authorized Payor and/or the School have attempted to create a fraudulent transaction.

In order to pay School Fees using the Billing Program, you will be required to designate a payment account (“Payment Account”). By using the Billing Program and designating a Payment Account, you authorize Popsicle and/or our payment processor to deduct amounts as invoiced by the School from your Payment Account. You will be responsible for ensuring the Payment Account has sufficient funds to pay School Fees on a timely basis, and will be responsible for any charges imposed by the bank or financial institution that maintains your Payment Account, including without limitation, charges for insufficient funds. In addition to charges imposed by your financial institution, you agree that Popsicle may also charge to your Payment Account, processing fees and other transaction fees (such as for refunds or insufficient funds) as set forth on the Popsicle or our payment processor website. All fees imposed by Popsicle and/or our payment processors are non-refundable.

All transactions are facilitated through Popsicle’s third party processing service (currently Stripe) which we may change by updating these Terms from time to time, in our sole discretion. By using the Billing Program you agree to the applicable processing service account agreement (currently the Stripe connected account agreement).

Schools

If you are a School, you may choose to use the Billing Program to collect School Fees. By doing so, the Billing Program shall be part of the Services (as defined in Section 1) and the Software and shall be subject to the Terms. In addition, by using the Billing Program you are also agreeing to the terms set forth in this Section 18.

The Billing Program will enable you to invoice Authorized Payors for School Fees, however, you are solely responsible ensuring the accuracy and timeliness of all invoices, and for ensuring that payments are made by Authorized Payors. The Billing Program will only facilitate payments from Authorized Payors, and Popsicle is not responsible for non-payment, delays in payments and/or processing issues. Any payment disputes must be resolved solely and directly between you and the Authorized Payors. You represent and warrant that amounts invoiced by the School via the Billing Program will be accurate and in accordance with your agreement with the Authorized Payors. You agree to reasonably authorize Popsicle to issue refunds in the event of invoicing errors, overpayments, or other payment issues that reasonably require that refunds be issued to Authorized Payors. Upon receipt of such authorization, you agree that Popsicle may issue refunds (less applicable transaction fees) to Authorized Payors, and deduct such amounts plus applicable fees from the School Account (as defined below).

In order to receive payments for School Fees using the Billing Program, you will be required to designate a financial account (“School Account”). You will be responsible for ensuring the Payment Account has sufficient funds to pay any refunds and fees imposed by Popsicle and/or our processing partners. In addition, you will be responsible for all fees assessed by the bank or financial institution that maintains your School Account, including without limitation, services charges, processing fees, and charges for insufficient funds. In addition to charges imposed by your financial institution, you agree that Popsicle may also charge to your School Account, processing fees and other transaction fees (such as for refunds or insufficient funds) as set forth on the Popsicle or our payment processor website. All fees imposed by Popsicle and/or our payment processors are non-refundable. Popsicle or its payment processor may hold part or all of the payments in case we believe that the Authorized Payor and/or the School have attempted to create a fraudulent transaction.

You are responsible for all taxes, fines or other amounts assessed on payments made through the Billing Program. In the event Popsicle and/or our payment processor is required to pay such amounts, you agree to promptly and fully reimburse Popsicle, and agree that Popsicle may deduct all such amounts directly from the School Account.

All transactions are facilitated through Popsicle’s third party processing service (currently Stripe) which we may change by updating these Terms from time to time, in our sole discretion. By using the Billing Program you agree to applicable processing service account agreement (currently the Stripe connected account agreement).