Terms and Conditions
DaySmart Appointments Scheduling Software
Last Modified: October 5, 2023
WITHOUT THE PRIOR WRITTEN CONSENT OF DAYSMART APPOINTMENTS, YOU MAY NOT ACCESS OR USE THE SERVICES IF YOU ARE A COMPETITOR OF DAYSMART APPOINTMENTS. ADDITIONALLY, YOU MAY NOT ACCESS OR USE THE SERVICES FOR PURPOSES OF MONITORING THE AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY OF THE SERVICES, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
BEFORE COMMENCING USE OF THE SERVICES, YOU MUST ASCERTAIN AND DETERMINE, IN YOUR SOLE DISCRETION, THAT THE SERVICES WILL MEET YOUR SPECIFIC FUNCTIONAL REQUIREMENTS.
2. Access, License, and Privacy
- In order to use the Services, you must have access to the Internet and provide all equipment necessary to make and maintain such connection. You should be able to access and use the Services on any computer with an Internet connection, using the most current versions of the following browsers: (i) Mozilla Firefox® (DaySmart Appointments recommends using Firefox for best performance); (ii) Google Chrome™; (iii) Microsoft Internet Explorer®; and (iv) Apple Safari® for Mac. DaySmart Appointments strongly recommends a minimum screen resolution of 1024 x 768 for the best possible user experience. Screen resolutions smaller than 1024 x 768 may cause display issues.
- You are responsible for your access and use of the Services, including, without limitation, all activities that occur in your Scheduler. You will (i) immediately notify DaySmart Appointments of any unauthorized use of any account or any other known or suspected breach of security; (ii) immediately report to DaySmart Appointments, and use reasonable efforts to immediately stop, any copying or distribution of Your Data that is known or suspected by you; (iii) assure that your access and use of the Services will comply at all times with all applicable local, state, and federal laws, rules, and regulations, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data; (iv) not impersonate any other DaySmart Appointments user or provide false identity information to gain access to or use the Services; and (v) immediately notify DaySmart Appointments in writing if you reasonably expect that your usage (including the usage of your customers and/or users) of the Services may result in a peak appointment creation volume of 500 appointments per hour.
- From time to time, DaySmart Appointments or third parties may make certain third-party applications, integrations, implementation, customization or consulting services, and other products and services (collectively, the “Third-Party Applications”) available to you. Any acquisition or usage of a Third-Party Application, and any exchange of data between you and any Third-Party Application provider, is solely between you and such third party. DaySmart Appointments does not guarantee, warrant, or support any Third-Party Application, whether or not such Third-Party Applications are designated as “certified” by DaySmart Appointments. If any such Third-Party Application provider ceases to make its Third-Party Application available for interoperation with the Services on terms acceptable to DaySmart Appointments, we, in our sole discretion, may cease permitting such interoperability with no liability to you for any refund, credit, or other compensation. If you access, install, or enable any Third-Party Application, you acknowledge and agree that DaySmart Appointments may permit such Third-Party Application providers to access Your Data as required for the interoperation of such Third-Party Applications with the Services. You acknowledge and agree that DaySmart Appointments is not liable for any disclosure, modification, or deletion of Your Data resulting from any such access by Third-Party Application providers. You acknowledge and agree to always backup Your Data prior to syncing or integrating.
- By enrolling for messaging and notifications with DaySmart, you will receive appointment updates and reminders. Message frequency varies. Message and data rates may apply. Reply HELP for help. Reply STOP to cancel. Carriers are not liable for delays or undelivered messages.
- From time to time, DaySmart Appointments may invite you to try, free of charge, certain DaySmart Appointments products or services that are not generally available to our customers (“Non-GA Services”). You may accept or decline any such trial in your sole discretion and at your sole risk. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction, or similar designation. Non-GA Services are provided solely for evaluation purposes and are not intended for and should not be used for production use. Non-GA Services are not supported, may contain bugs or errors, and may be subject to additional terms. DaySmart Appointments may discontinue Non-GA Services at any time, in our sole discretion, and may determine to never make them generally available. NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE DaySmart Appointments PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE DaySmart Appointments PARTIES DO NOT WARRANT THAT THE NON-GA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR SERVERS THAT MAKE THE NON-GA SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE NON-GA SERVICES WILL MEET YOUR APPLICABLE REQUIREMENTS.
3. Registration Policy and Account Security
- You may designate and add users and shall provide and assign unique passwords and user names to each authorized user. You shall ensure that multiple users do not share a password or user name. You acknowledge and agree that you are prohibited from sharing passwords and/or user names with unauthorized users. You will be responsible for the confidentiality and use of your passwords and user names. You are responsible for managing users and their user names, and user access to the Services (e.g., shutting down access for users terminated by you). DaySmart Appointments will act as though any electronic communications it receives under Your passwords, user names, and/or account numbers have been sent by You. You agree to immediately notify DaySmart Appointments if you become aware of any loss or theft or unauthorized use of any of your passwords and/or user names.
4. Intellectual Property Rights; Your Data; Copyright Infringement Notification Process
- While using the Services, you agree that you will not upload, post, email, transmit, or otherwise make available any of Your Data that: (i) is unlawful, harmful, threatening, abusive, harassing, tortious, infringing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or is racially, ethnically, or otherwise objectionable; (ii) creates a risk of harm, loss, or damage to any person or property or a risk of physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal; (iii) seeks to harm or exploit minors in any way, including, but not limited to, by exposing them to inappropriate content, asking for personally identifiable details, or otherwise; (iv) violates, or encourages any conduct that violates, laws or regulations, or contains any information or content that is illegal; or (v) infringes any third party’s intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights, or contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
- The term “Your Data” also includes registration information, business and financial information, electronic transmissions, and all other data of any kind contained within emails or otherwise submitted by you or entered electronically in the course of your use of the Services. You understand that the technical processing and transmission of Your Data (including the possible transmission of Your Data outside its country of origin) may be necessary to your use of the services and content offered on or through the Services, and consent to our interception and storage of Your Data. You understand that you or DaySmart Appointments may be transmitting Your Data over the Internet, and over various networks, only part of which may be owned and operated by DaySmart Appointments. You agree that DaySmart Appointments is not responsible for any portions of Your Data that are lost, altered, intercepted, or stored without authorization during the transmission of Your Data across networks not owned and operated by DaySmart Appointments.
- DaySmart Appointments abides by the Federal Digital Millennium Copyright Act (the “DMCA”). If you believe that any content included on the Services is your proprietary work, and has been copied in a way that constitutes an infringement of your copyrights in that work, please immediately notify DaySmart Appointments of any such copyright or other Intellectual Property Rights infringement. Similarly, if you believe that Your Data has been inappropriately removed, You may send a counter-notification. In either case, your written notice should be sent to our designated agent as follows:DMCA Complaints
Attn: Legal Department
15300 N 90th Street, Suite 100, Scottsdale, AZ 85260
Email: [email protected]
- Copyright Infringement Notification. To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. Providing URLs is the best way to help us locate content quickly.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Counter Notification. If Your Data has been taken down, you may elect to send us a counter notice. To be effective, your counter notice must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
- A physical or electronic signature of the subscriber.
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
5. Fee and Payment Terms
- DaySmart Appointments reserves the right to change the Fee for any Renewal Term with at least thirty (30) days’ prior notice to you, which notice may be provided by email.
- All Fees are due and payable as set forth herein and in the applicable Order Form. If you believe any Fees are incorrect, you must contact us within ten (10) days of the date of payment to be eligible to receive an adjustment or credit.
6. Term and Termination
- The Services may be cancelled at any time. The effectiveness of any cancellation will not occur until the end of the thirtieth (30th) day after your completion of the appropriate cancellation form provided by DaySmart Appointments upon your request (a “Cancellation Form”). No full or partial refunds or prorations will be provided, regardless of your usage of the Services and regardless of whether the Fee is paid in full in advance or monthly during the Initial Term or Renewal Term. In addition to the Cancellation Form, all cancellation requests also require live telephone confirmation with an DaySmart Appointments Client Success representative (including account ownership verification and reason for cancellation). Cancellation requests will not be processed until such live telephone confirmation is completed.
7. Disclaimer of Warranties/Limitation of Liability
- THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, DAYSMART APPOINTMENTS AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, MANAGERS, MEMBERS EMPLOYEES, AGENTS, AND LICENSORS (COLLECTIVELY, THE “DAYSMART APPOINTMENTS PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE DAYSMART APPOINTMENTS PARTIES DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR SERVERS THAT MAKE THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL MEET YOUR APPLICABLE REQUIREMENTS.
- YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. IF YOU DOWNLOAD ANY CONTENT OR DATA FROM THE SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OF ANY CONTENT OR DATA THROUGH THE SERVICES. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICES OR ANY FEATURE OR PART THEREOF AT ANY TIME. THE DAYSMART APPOINTMENTS PARTIES ASSUME NO RESPONSIBILITY FOR THE DELETION OR MIS-DELIVERY OF, OR FAILURE TO STORE, ANY CONTENT, DATA, OR PERSONALIZATION SETTINGS.
- WE PROVIDE YOU THE ABILITY TO, AND WE STRONGLY RECOMMEND THAT YOU, REGULARLY BACK UP ALL DATA VIA REPORTS AND MICROSOFT EXCEL® FILES TO PRESERVE YOUR DATA.
- THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DAYSMART APPOINTMENTS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- YOU UNDERSTAND AND AGREE THAT THE DAYSMART APPOINTMENTS PARTIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF AN DAYSMART APPOINTMENTS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (i) YOUR USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS, THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR SCHEDULER.
- IN NO EVENT SHALL DAYSMART APPOINTMENTS’ TOTAL CUMULATIVE LIABILITY EXCEED THE AMOUNT PAID BY (AND NOT OTHERWISE REFUNDED TO) YOU TO DAYSMART APPOINTMENTS FOR USE OF THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THIS AGREEMENT ALLOCATES RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH IN EACH ORDER DOCUMENT REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
8. Indemnification and Release
- Other than as set forth herein, DaySmart Appointments is not directly involved in the actual transaction between you and your customers using the Services (including your Scheduler). DaySmart Appointments has no control over the quality or legality of the appointments made, or the truth or accuracy of the user registrations. DaySmart Appointments cannot ensure that your customers will honor their appointments. As we are not involved in the actual direct transaction between you and your customer, in the event that you have a dispute with one or more customers, you release the DaySmart Appointments Parties 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. If you are a California resident, you waive any and all rights and benefits conferred by the provisions of Section 1542 of the Civil Code of the State of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
9. Injunctive Relief
10. Governing Law
11. Legal Compliance
- You represent and warrant that you are not (a) located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) listed on any U.S. Government list of prohibited or restricted parties.
- You shall comply with all applicable laws, statutes, ordinances, rules, and regulations regarding your use of the Services, and posting and retrieval of Your Data (including, without limitation, those governing interstate commerce, export control, unfair competition, or false advertising). If there are applicable fees and taxes you incur to access the Services, including, without limitation, all applicable sales, use, gross receipts, and excise taxes, you are solely responsible for their payment.
12. No Waiver; Severability
This Agreement does not establish any relationship of partnership, joint venture, employment, franchise, or agency between you and us.
DaySmart Appointments may give notice by means of a general notice on the Services, electronic mail to your email address on record in DaySmart Appointments’ account information, or by written communication sent by first-class mail or prepaid post to your address on record in DaySmart Appointments’ account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first-class mail or prepaid post) or 12 hours after sending (if sent by email). You may give notice to DaySmart Appointments (such notice shall be deemed given when received by DaySmart Appointments) at any time by any of the following: (i) email to [email protected]; (ii) letter sent by confirmed facsimile to DaySmart Appointments at 480.607.4419; (iii) letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail to DaySmart Appointments at 15300 N. 90th Street, Suite 100, Scottsdale, AZ 85260.
16. Integration and Modification
QUESTIONS OR ADDITIONAL INFORMATION
If you have questions regarding this Agreement or wish to obtain additional information, please send an email to [email protected].