Terms of Service
Dash Platform, LLC dba DaySmart Recreation (“DaySmart Recreation”, “We”, ”Our” or “Us”) provides its Services to you (“You” or “Your”) through its web site located at daysmartrecreation.com (the “Site”), subject to these Terms. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN DO NOT ACCESS THE SITE OR USE THE SERVICES OR CONTENT. BY VIEWING OR USING ALL OR ANY PART OF THE SERVICES OR THE SITE, OR DOWNLOADING ANY MATERIALS OR BY COMPLETING ANY REGISTRATION PROCESS VIA THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS.
By accepting these Terms, or by accessing or using the Service or Site, You represent and acknowledge that You have read, understand, and agree to be bound by these Terms, and that the information You provide to DaySmart Recreation via the Service or the Site is accurate, complete, and is Yours or within Your right to use. If You are entering into these Terms on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its subsidiaries and affiliates to these Terms. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
You acknowledge that these Terms constitute an agreement between You and Us, even though it is electronic and is not physically signed by You and Us, and that these Terms govern Your use of the Service and supersede any prior version of these Terms.
Description Of Service
The “Service” includes the Site and applications (“Apps”), and services provided to You through the Site including all software, data, text, images, sounds, videos, and other content made available through the Site (collectively, “Content”). Any new features added to or augmenting the Service are also subject to these Terms.
We make commercially reasonable efforts to have the Site, Apps and services available 24×7, except for: (a) planned downtime or (b) circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures, or failures of our vendors or suppliers.
General Conditions/Access And Use Of The Service
Subject to the terms and conditions of these Terms, You agree to access and use the Service only for Your business purposes as contemplated by these Terms, or as otherwise authorized by DaySmart Recreation in a writing signed by DaySmart Recreation (the “Sports Facilities Service Agreement”). Except Your limited right to access and use the Service as expressly granted to You here, all rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to Us and Our third-party vendors.
You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with Us, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (g) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (h) try to use, or use the Service in violation of these Terms.
You are responsible for all information, data, text, messages or other materials that You post or otherwise transmit via the Service. You are responsible for maintaining the confidentiality of Your login and account, and are fully responsible for any and all activities that occur under Your login or account.
Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
Data Privacy And Security
In providing You the Service, We shall use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Your data. These safeguards include, where applicable, encryption of Your data in transmission (using SSL or similar technologies), except for external third party integrations that do not support encryption, which You may link to the Service at Your choice.
DaySmart Recreation will use commercially reasonable efforts to secure the storage, transmission, and processing of Payment Data that flows through its systems. DaySmart Recreation will use commercially reasonable efforts to use validated PCI DSS Service Providers to facilitate the storage, transmission and processing of Payment Data. DaySmart Recreation will use commercially reasonable efforts to maintain compliance with PCI DSS requirements. At no point is cardholder data intentionally stored on Our systems and at no point does intentionally unencrypted cardholder data flow through Our network.
Subject to the limitations within these terms, We will use, and You hereby grant us the right to use, Your data for the purpose of creating anonymized aggregated data. You agree that We will have ownership of any derivative data created from such data, so long as it is anonymized in such a way that it cannot reasonably be attributed back to You and/or any of Your users. You agree that we have the right to use or license such derivative data for any other purpose, including for DaySmart Recreation or third party products or services.
Your data is hosted by Amazon Web Services in the U.S.A.
California Consumer Privacy Act of 2018 (“CCPA”). The terms in this section apply only to Your customers that are California residents.
- DaySmart Recreation will not sell personal information, defined to mean Personal Information Processed by DaySmart Recreation in the course of providing services under this Agreement, or any other confidential or proprietary data, information or materials (collectively, “Your Data”) arising from or related to this Agreement. The terms, “Selling”, “Personal Information”, and “Processing” shall have the meanings as set forth in the CCPA; and
- DaySmart Recreation will not retain, use, Sell, combine or disclose Your Personal Information or Your Data for any purpose (other than for the specific purpose of performing the services in this Agreement) and outside of the direct business relationship between the parties associated with the Your Personal Information and DaySmart Recreation.
- To the extent any Deidentified Personal Information is included in Your Personal Information, DaySmart Recreation undertakes as follows:
- DaySmart Recreation shall not make any attempts to re-identify the Deidentified Personal Information.
- DaySmart Recreation has implemented and will maintain technical safeguards that prohibit re-identification of Deidentified Company Personal Information.
- DaySmart Recreation has implemented and will maintain business processes that specifically prohibit re-identification of information and prevent inadvertent release of Deidentified Personal Information.
- DaySmart Recreation will periodically reassess its technical safeguards and processes to ensure that they are still adequate to prevent the re-identification of information or inadvertent release of Deidentified Personal Information.
- Consumer Requests. DaySmart Recreation shall, without undue delay, acknowledge Your request or instruction regarding the exercise of any consumer privacy rights under the law, including without limitation, the CCPA (“Consumer Requests”).
- DaySmart Recreation will provide reasonable assistance to You to enable You to respond to consumer requests to exercise their rights under the CCPA or other applicable laws. If DaySmart Recreation receives a request from You to provide access to a consumer’s Personal Information, which is Processed by DaySmart Recreation, then, to the extent DaySmart Recreation is able to verify the consumer’s identity based on information provided by You, DaySmart Recreation will, without undue delay, provide You with access to such information using a mutually acceptable format or mechanism.
- If DaySmart Recreation receives a request from You regarding the opt out of a Sale (as such term is defined under CCPA) of Your Personal Information of a consumer, the Parties will discuss in good faith whether such request is relevant to the Processing of Your Personal Information by DaySmart Recreation and the best manner to address such requests.
- If DaySmart Recreation receives a request from You to return or delete Your Personal Information of a consumer, which is Processed by DaySmart Recreation, then, to the extent DaySmart Recreation is able to verify the consumer’s identify based on information provided by You, and unless prohibited under applicable laws, DaySmart Recreation will, without undue delay and, at Your election (i)return a complete copy of all Your Personal Information in such format and manner requested by You and (ii) comply with the request to delete by de identifying the Your Personal Information or aggregating Your Personal Information.
- If DaySmart Recreation receives a request from a consumer to exercise any of the rights provided to the consumer under CCPA or applicable data protection laws, then DaySmart Recreation will, without undue delay, respond to the consumer with a response that will include: (i) an explanation that DaySmart Recreation received the request but may not answer directly; (ii) a statement directing the consumer to submit the request directly to You; and (iii) the Your contact information. To the extent DaySmart Recreation is legally required to provide a different response, DaySmart Recreation, to the extent permitted by such applicable law, will inform You of that legal requirement before it responds to the request.
Intellectual Property Rights
We expressly reserve all rights, title and interest in and to all our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. You grant to Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You. Our product and service names, and logos used or displayed on the Service are Our registered or unregistered trademarks (collectively, “Marks”), and You may only use such Marks to identify yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, use any confusingly similar marks, or use the Marks to disparage or misrepresent Us, or Our services or products.
Third Party Services
External Sites. The Service may contain links to, or otherwise may allow You to connect to and use third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If You decide to access and use Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your data. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any Other Services, or Your reliance on the privacy practices or other policies of Other Services.
Integration. The Service may contain features that enable various Other Services (such as social media services like Facebook and Twitter) to be directly integrated into Your experience. To take advantage of these features, You will be required to register for, or log into, such Other Services on their respective websites. By enabling third party services within the Service, You are expressly allowing Us to pass Your log-in information to these Other Services for this purpose.
Cancellation And Termination
We reserve the right to (i) modify or discontinue, temporarily or permanently, any of the Apps or the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, or suspend or terminate your account if We believe that You have violated these Terms. We will use commercially reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of the Service, and may be referred to law enforcement authorities. You agree that We are not liable to You, or any third party, for any modification, suspension or discontinuation of the Service.
Training Cancellation/No Show/Late Show Fees:
- No notice, no show/Short Notice cancellation (within 24 hrs) – This deducts the full scheduled training time from client’s allotted hours
- Late show – The amount of time missed is deducted from client’s allotted hours
** After 15 minutes not present for the meeting your training is automatically cancelled, and is deducted from your allotted hours
Disclaimer Of Warranties
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS PARAGRAPH.
Limitation Of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION DO NOT APPLY TO YOUR INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS10.2 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY IN THESE TERMS, OUR (INCLUDING ANY OF OUR AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OR RELATING TO OUR SERVICE OR SITE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. 10.3 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. In these states, our liability will be limited to the greatest extent permitted by law.
Indemnification by Us. We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes a valid U.S. patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). We shall, at our expense, defend such Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defense, provided that (i) You promptly notify Us of the threat or notice of such Claim, (ii) We have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) You fully cooperate with Us in connection therewith. If Your use of the Service has become, or in Our opinion is likely to become, the subject of any such Claim, We may at our option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate these Terms and repay You any unused Service fees. We will have no liability or obligation with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Us; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section state our entire liability to You and constitute Your sole remedy with respect to a Claim brought by reason of Your permitted use of the Service.
Indemnification by You. You agree to defend, indemnify, and hold Us harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your or Your end users’ access to, use, misuse or illegal use of the Service. We will provide You notice of any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Our defense of such matter.
Assignment; Entire Agreement; Revisions
We may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agrees to be fully bound by these Terms. You may assign or transfer these Terms, in whole or in part, with Our prior written consent, which may be withheld in our sole discretion. These Terms supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements, such as a Sports Facilities Service Agreement , expressly accepted and executed by both parties). We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of any changes that have a material adverse effect on you, and direct You to the latest version.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
Export Compliance And Use Restrictions
Content and software components of the Service are subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to such software and Content, and access and use of the Service. You shall not access or use the Service if you are located in any jurisdiction prohibited by U.S. Laws, and You shall also not provide access to the Service to any government, entity or individual located in any such jurisdictions.
Relationship Of The Parties
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections (General Conditions/Access and Use of the Service), (Intellectual Property Rights), (Billing, Plan Modifications and Payments), (Cancellation and Termination), (Disclaimer of Warranties), (Limitation of Liability), (Indemnification), (Assignment; Entire Agreement; Revisions), (Severability), (Export Compliance and Use Restrictions), (Relationship of the Parties) and (Governing Law; Venue; Attorney’s Fees) will survive any termination of these Terms.
Governing Law; Venue; Attorney’s Fees
These Terms shall be governed by the laws of the State of Washington without regard to conflict of laws principles. Exclusive venue for any legal action shall be in the federal and state courts of the State of Washington, King County. You hereby expressly agree to submit to the exclusive personal jurisdiction of such courts for the purpose of resolving any dispute relating to Your access to or use of the Service. In the event of any legal action between You and Us, the substantially prevailing party shall receive from the losing party its reasonable costs and attorney’s fees incurred in the action and in any appeal.