Version: 1.3
Effective from
Effective from
Effective from
Datum der Inkraftsetzung:
Effective from
3/20/23
20/3/2023
Between the customer as set out in the Famly Offer
(hereafter the ”Customer”)
and
Famly ApS
Købmagergade 19, 2tv
1150 Copenhagen K, Denmark
VAT no.: 35 41 37 58
(hereafter “Famly”)
Definitions
”Admin User” means an admin user of the Customer who has full access to the Platform;
“Agreement” means these terms and conditions between Famly and the Customer regarding the services provided by Famly;
“Authorised User” is a collective term for all Admin Users, Staff Users and Family Users who are invited to use the Platform;
“Customer Data” means any personally identifiable data of individuals related to the Customer, such as of children, parents and employees used on the Platform or otherwise communicated to Famly;
”Confidential Information” means any information of commercial value, in whatever form or medium, including commercial or technical know-how, technology, business operations, customer information, pricing or any other information that is labelled confidential information or information reasonably considered confidential because of its’ nature and manner of disclosure;
“Family User” means third parties connected with the schools, daycares or nurseries specified in the Famly Offer, for example parents, guardians or other family members of children attending the Customers settings;
“Famly Offer” means the offer made by Famly setting out the details of the chosen subscription package, additional services (if applicable) and payment terms;
“Maintenance Window” means weekends or the time period between 10 PM and 6 AM Eastern time on working days;
“Platform” means the early childhood software services provided by Famly with features subject to the chosen subscription package as described in the Famly Offer;
“Staff User” means a user of the Platform who is an employee of the Customer (other than Admin Users) with appropriate permission rights as necessary in order for the employee to perform its’ duties;
“Subscription Term” means the chosen subscription period, either annually or monthly unless otherwise stated in the Famly Offer, which is the term of this Agreement.
1. Introduction
1.1. The following terms and conditions set out the agreement between Famly and the Customer regarding the services provided by Famly. The Agreement applies to the Customer irrespective of whether the Customer subscribes to a paid subscription package or if the Customer uses the free package. By using the free package a Customer is bound by this Agreement.
1.2. The Famly Offer sets out the details of the Customer’s chosen subscription package, additional services (if applicable) and payment terms.
1.3. The Customer may receive the Famly Offer by email or in the Platform itself. The Customer is bound by this Agreement when accepting the Famly Offer. The Famly Offer is governed by the terms of this Agreement.
2. The Platform
2.1. Famly provides the Customer with the Platform, an early childhood software services with features subject to the chosen subscription package as described in the Famly Offer, including the support and maintenance as set out in Section 6. The Platform is hosted by Famly.
2.2. Famly may offer the Customer, and Family Users separately, additional services and features in the Platform that go beyond the agreed standard features. Such additional services and features are optional for both the Customer and Family Users and subject to additional fee as specified by Famly from time to time.
3. License and Limitations
3.1. Famly grants to the Customer a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to access and use the Platform and any agreed additional services and features specified in the Famly Offer or as otherwise agreed by the parties in writing in respect of those schools, daycares or nurseries specified in the Famly Offer (subject to any specified limitations) during the Subscription Term of the Agreement.
3.2. The Customer must not, directly or indirectly:
a. copy, modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Platform;
b. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Platform;
c. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property right notices from the Platform;
d. sublicense, assign, transmit or otherwise distribute all or any portion of the Platform other than as permitted by the terms of this Agreement.
4. Customer Obligations
4.1. The Customer is responsible for:
a. inserting correct and accurate information and Customer Data in the Platform and updating this Customer Data in event of changes;
b. ensuring that its IT systems are up-to-date and that IT equipment etc. functions properly at all times;
c. ensuring that Authorised Users use the Platform in compliance with the Terms of Use, which each Authorised User must accept upon signing in for the first time;
d. ensuring that the Platform is only accessed and used with a username and password. The Customer must ensure that all access credentials and passwords are kept confidential, secure and safe and that it is only used in connection with access to the Platform; and
e. complying with all applicable laws and regulations with respect to its activities under this Agreement, including but not limited to observantly use any features designed to ease compliance with specific state law requirements.
5. Access to the Platform and Authorised Users
5.1. Famly provides the Customer with access to the Platform via Admin User account(s). The Admin User may grant Staff Users access to the Platform and provide them with the appropriate permission rights as necessary in order for them to perform their duties.
5.2. The Admin User and Staff User with adequate permission rights, may grant Family Users access to the Platform.
5.3. Admin User, Staff User and Family User are collectively referred to as “Authorised User”/”Authorised Users”.
5.4. All Authorised Users must accept the Terms of Use when signing up for the first time. The Customer may set additional guidelines and policies around the use of the Platform.
6. Maintenance, Support and Operation
6.1. Famly will provide the Platform to the Customer, including maintenance and support, using reasonable skill and care expected of a competent provider of similar services, in a timely and professional manner, in accordance with applicable laws, good industry practices and using appropriately skilled, trained and qualified personnel.
6.2. Depending on the selected subscription package, Famly will provide support to the Customer regarding the use of the Platform through the Famly Customer Support and Customer Success teams.
6.3. The support covers onboarding and training in the usage of the Platform, answering concise and precise questions concerning the usage of the Platform, carrying out simple troubleshooting and providing general guidance regarding the Platform.
6.4. Reporting of bugs and operational issues can also be addressed to the Famly Customer Support team.
6.5. The support does not include technical consultancy or troubleshooting of the Customer’s IT system.
6.6. Support is available on working days within normal business hours, Monday to Friday from 9 AM to 5 PM Eastern time on phone (929) 243-5987 or via the chat in the Platform.
6.7. Uptime and Maintenance
a. Famly uses all commercially reasonable efforts to deliver the most possible uptime of the Platform at all times. The status of the Platform and overview of planned maintenance and incidents are available at https://status.famly.co/, where the Customer can subscribe to status updates.
b. All scheduled maintenance will, as far as reasonably possible, be carried out with minimal disruption for the Customer and conducted outside ordinary business hours. To the extent possible, maintenance is conducted during the Maintenance Window.
c. The Platform might be unavailable due to maintenance work etc. within the period of the Maintenance Window. For safety reasons or when correcting critical errors, Famly can be forced to close down parts of or the entirety of the Platform during hours outside the Maintenance Window in order to protect the Platform, including its systems, and/or the Customer’s Data from risks. To the extent possible, Famly will notify the Customer by email and/or on the Platform of unscheduled actions outside of the Maintenance Window.
d. Famly will use reasonable endeavours to sustain a continuous operation, including ongoing maintenance of the Platform by correcting errors and dysfunctions. The correction of significant errors will be initiated within ordinary business hours, while other errors are targeted within a reasonable period of time in relation to the nature of the error and the impact on the Platform and the Customer’s use thereof.
e. Famly will further use reasonable endeavours to continue development of the Platform, engaging both in development of existing functionalities and development of new functionalities as may be appropriate.
f. Relevant monitoring is installed on the system and Famly monitors the Platform’s system on a regular basis. Famly will act as quickly as reasonably possible on any incidents that could affect the Customer’s use of the Platform.
6.8. Backup
a. Backup of the Platform and of the Customer’s Data will be carried out and retained for 30 days from the date of each backup.
7. Fees and Payment Terms
7.1. The Customer must pay an annual or monthly subscription fee, which is based on the Customer’s desired functionalities, subscription package and the number of daycares, nurseries or schools using the Platform, and which is set out in the Famly Offer.
7.2. The Customer must pay a separate fee for any purchased add-ons added to the Platform, as per the pricing applicable at the time the additional services are provided.
7.3. The Customer may have to pay a one-time fee in relation to the set-up of the Platform as may be set out in the Famly Offer.
7.4. The fees, exclusive of value added tax (VAT), and payment terms are specified separately in the Famly Offer. The Customer is responsible for paying all external fees and taxes associated with its use of the Platform, wherever levied, including value added tax, sales tax or other similar charges if they apply.
7.5. Unless otherwise stated in the Famly Offer, Famly may, at its sole discretion, change the annual and/or monthly subscription pricing or add-ons pricing with effect from the subsequent renewal of the Subscription Term, provided a written notification (including e-mails) is sent to the Customer no later than three ( 3 ) months prior to the start of that subsequent Subscription Term.
7.6. Invoiced amounts are due within fourteen (14) days from the invoice date, unless otherwise stated in the Famly Offer. For late payment, Famly is entitled to charge a 2% arrears per commenced month, starting from the due date. If the invoice is not paid by the due date, Famly is, until the overdue payment is received, entitled to prevent the Customer accessing the Platform until all arrears have been received (notwithstanding Famly’s right to terminate the Agreement as per Section 14).
8. Intellectual Property
8.1. Famly owns all rights, including (without limitation) all copyright, trademarks and all other intellectual property rights, in and connected with the Platform. The Customer shall not obtain any ownership to the Platform, or any other rights to the Platform, except to access and use the Platform in accordance with the license granted under this Agreement.
8.2. The Customer grants Famly a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Customer’s name and/or logo on the Famly website/social media channels and, if applicable, to provide the Customer with a branded version of the Platform, provided that Famly complies with any branding guidelines that the Customer provides.
8.3. Customer assigns to Famly all right, title and interest in any ideas, suggestions, enhancement requests, recommendations or any feedback provided to Famly relating to the Platform. The Customer further acknowledges that Famly will be entitled to use, implement and exploit any such feedback, ideas, suggestions for any purpose whatsoever without any obligation of confidentiality (except to the extent it comprises the Customer confidential information), attribution, accounting or compensation.
9. Confidentiality
9.1. Each party (the “Receiving Party”) undertakes and agrees to hold in confidence and not to use the other party’s (the “Disclosing Party”) Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement (the “Permitted Purposes”)
9.2. The Receiving Party must not divulge any Confidential Data of the Disclosing Party to any person, except to its own employees/workers under contract and then only on a “need-to-know” basis for the Permitted Purpose.
9.3. Confidential Information of Famly includes all aspects of the Platform and the services.
9.4. Confidential Information of the Customer includes the Customer Data.
9.5. Confidential Information does not include information that i) is or becomes generally available to the public (unless if it is because of the Receiving Party breach of this Agreement); ii) was in the possession or known by the Receiving Party prior to receipt from the Disclosing Party; iii) was rightfully disclosed to the Receiving Party without restriction by a third party; iv) was independently developed without use of any Confidential Information of the Disclosing Party; or v) is required to be disclosed by law.
10. Personal Data Processing
10.1. All data, including Customer Data, submitted into the Platform by the Customer or the Authorised Users is the property of the Customer.
10.2. As part of providing the services, operating and supporting the Platform, Famly conducts processing of Customer Data. The Customer is responsible for determining and ensuring compliance with applicable data protection legislations, including the lawfulness of the processing.
10.3. Famly will process Customer Data in accordance with good industry practices provided they are commercially reasonable. The Customer may request in writing with 30 days notice, for documentation regarding measures taken to implement and maintain data security.
11. Security and Disclaimer of Warranties
11.1. Famly strives to ensure that operation of the Platform is as secure and reliable as possible in accordance with good IT practices.
11.2.The Platform is provided ”as is” without warranty, representation, condition or guarantee of any kind, either expressed or implied, including but not limited to any implied warranties, representations, conditions or guarantees of quality, merchantability, fitness for a particularly purpose or non-infringement, all of which are disclaimed to the fullest extent permitted by law. Famly specifically, but without limitation, does not warrant that:
a. the Platform will be uninterrupted, error-free or flawless;
b. the Platform will be secure against hacker attacks or other unauthorized access to the Platform, even though Famly shall use reasonable endeavours to design the Platform to resist hacker attacks and other unauthorized access;
c. the Platform will at any given time be fully operational or accessible to the Customer;
d. the Platform (including new versions, updates etc.) will be compatible or work with other software, applications or systems or operate on any hardware without interruption; or
e. any specific functionalities of the Platform will be available at any given time.
11.3. Famly has no responsibility or liability for any third-party platforms that the Customer may integrate with the Platform.
11.4. Features offered to ease the Customer compliance with specific state law requirements are provided without liability. Famly will use all commercially reasonable endeavours to update in case of potential changes to legislations.
12. Errors and Omissions
Provided the Customer wishes to complain about errors or omissions within the Platform, this must be done promptly after first coming to the Customer’s notice, and in any event within 30 (thirty) days. Otherwise, the Customer will be deprived of the right to complain for breach of contract.
13. Liability and Limitation of Liabilities
13.1. Nothing in this Agreement will exclude either party’s liability for death or personal injury caused by its negligence, or fraud or fraudulent misrepresentation or any other liability which cannot be excluded by law.
13.2. Neither party will be held liable for any indirect, special, incidental or consequential damages whatsoever (including but not restricted to, damages for loss of profits, operating loss, loss of business, demands raised by third parties, data loss or expenses regarding reestablishment of data, loss arising out of or in any way related to the use of or inability to use the Platform, third-party software and/or third-party hardware used with the Platform) which may occur in respect of the Agreement.
13.3. Loss of data is considered as indirect loss, except if the data cannot be recovered from the latest backup or Famly has not backed up in accordance with Section 6. In those cases, the loss is considered a direct loss.
13.4. Famly will not be liable for the Customer’s loss of data where such data has been submitted by the Customer after the time of the latest backup.
13.5. Except for any liability under clause 13.1, each party’s total aggregate liability for damages for or in respect of any claim under or in connection with this Agreement (whether or not such liability results from or involves negligence) shall in all circumstances be limited to an amount equal to the fees paid by the Customer in respect of the usage of the Platform twelve (12) months prior to the event giving rise to the claim.
14. Subscription Term, Termination and Breach of Contract
14.1. The Subscription Term of this Agreement is the chosen subscription period, either annually or monthly. The Subscription Term will automatically renew for subsequent Subscription Terms, unless the Agreement is terminated by either party in accordance with this Agreement. In the event, the Famly Offer sets out a different Subscription Term and/or a different automatic renewal period, the Famly Offer shall prevail.
14.2. The Customer may terminate the Agreement by giving at least a one ( 1 ) month written notice (includes email) at any time. For the avoidance of doubt, the Customer is not entitled to any reimbursement of paid fees.
14.3. Famly can terminate the Agreement by giving a three ( 3 ) month’s written notice (includes email), unless other arrangements have been made between the parties. Such termination will take effect at the end of the then current Subscription Term.
14.4. If the Customer is using a free package of the Platform, Famly has the right to deactivate and block the Customers account to the Platform, and therefore terminate the Agreement, if it has been inactive for more than three ( 3 ) months. Famly will provide a prior written notice (including email).
14.5. If the Customer breaches a payment obligation set out in Section 7 and such breach is not remedied within fourteen (14) days of Famly giving the Customer a written notice (includes email) of the relevant breach, Famly may terminate the Agreement with immediate effect.
14.6. Either party may terminate this Agreement with immediate effect by giving written notice (includes email) to the other (without affecting any other rights or remedy, if i) a party fails to comply with any material provision of this Agreement and such failure to comply (if capable of remedy) is not remedied within thirty (30) days of the other party giving written notice (includes email) to it of the relevant breach; ii) the other party suffers an insolvency event; or iii) the other party suspends, or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.7. If Famly proposes a material change to the Agreement, provided that the changes are not required by applicable law or regulations, and the Customer objects to the material change by providing reasonable arguments, the Customer is entitled to terminate the Agreement by giving Famly a written notice (includes email) terminating the Agreement at the end of the Subscription Term or at the day the proposed changes take effect, whichever is sooner.
14.8. Upon termination of this Agreement, the Customer must immediately pay any outstanding invoices (if any), the license under this Agreement will immediately end and the Customer will no longer have access to the Platform. In addition, the Customer must instruct Famly whether or not to return the Customer Data as it will otherwise be permanently deleted 60 days following the termination date.
14.9. Sections on warranties, intellectual property, limitations of liability, and confidentiality shall survive expiration or termination of this Agreement and continue in force indefinitely.
15. Force Majeure
Neither party will be liable for a breach of this Agreement caused by circumstances beyond that party’s control, including (for example), strikes, lockouts, public regulations, war, terrorism, water damage, trade restrictions, virus or hacker attacks, illness or deaths of key employees, IT failures, telecommunications malfunctions, fire, electricity breach, power failure, flooding, lightning strike, pandemic, epidemic, acts of government or abnormal weather conditions (“Force Majeure Event”). In such circumstances the time for performance will be extended by a period equivalent to the period during which performance of the obligations has been delayed or failed to be performed. If the period of delay or non-performance continues for a period exceeding 60 days, the party not affected by the Force Majeure Event, may terminate this Agreement immediately on written notice to the other.
16. Assignment
16.1. Famly may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights and/or obligations under this Agreement.
16.2. The Customer will not, without the prior written consent of Famly, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and/or obligations under this Agreement.
17. Third Party Rights
No one other than a party to the Agreement will have any right to enforce any of its terms.
18. Severability
If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part- provision under this Section 18 shall not affect the validity and enforceability of the rest of the Agreement.
19. Amendments
The Customer agrees that Famly has the right, from time to time, to make changes to the terms of the Agreement if it deems a change is necessary for it to comply with applicable law, regulations (including data protection laws) or otherwise deems necessary or appropriate as determined at Famly discretion. Any changes will take place 14 days after Famly has notified the Customer of such change in writing by email. If the Customer by providing reasonable arguments objects to any material changes proposed, other than those required to comply with law and regulations, the Customer can terminate the Agreement in accordance with clause 14.7.
20. Waiver
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: (i) waive that or any other right or remedy; or (ii) prevent or restrict the further exercise of that or any other right or remedy.
21. Notices
Any notice given to a party under or in connection with this Agreement will be in writing and will be delivered by email. Such notice will be deemed to have been received within 1 working day after sending that email to the designated point of contact.
22. Entire Agreement
22.1. This Agreement and the Famly Offer (including any other additional agreements if applicable to the parties) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2. Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
23. Governing Law and Dispute Resolution
23.1. The Agreement is governed by the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
23.2. Any legal suit, action or proceeding arising out of, or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the County of New York (although Famly retains the right to bring any suit, action or proceeding against Customer for breach of this Agreement in any other relevant country). Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
24. Arbitration and Class Action Waiver
24.1. At Famly’s sole discretion, it may require the Customer to submit any disputes arising from this Agreement including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of the State of New York.
24.2. Customer further agrees that the Customer will resolve any disputes on an individual basis, and that any claims brought under this Agreement must be brought in Customer’s individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The Customer further agrees that it will not participate in any class action (existing or future) brought by any third party arising under this Agreement. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then such class action is not subject to arbitration and must be litigated in state or federal court situated in New York County in the State of New York.
25. Limitation on Time to File Claims
Any cause of action or claim customer may have arising out of or relating to this Agreement must be commenced within one year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
