Terms and Conditions

DaySmart Appointments Scheduling Software

Last Modified: October 5, 2023

These terms of use (the “Terms of Use”) are a binding agreement between you and StormSource, LLC, dba DaySmart Appointments, an Arizona limited liability company (“DaySmart Appointments,” “us,” “our,” or “we”), governing your access to and use of our software on an Application Service Provider (ASP) basis and any related services provided to you by DaySmart Appointments, including our customized online scheduling application (the “Scheduler”) (collectively, the “Services”). We acknowledge and you acknowledge that these Terms of Use are between DaySmart Appointments and you, and not with any other third party, including any mobile platform provider. Incorporated herein by reference is our Content Policy.

Please read the Terms of Use carefully before you access or start use of the Services. The Services are available ONLY TO USERS 18 YEARS OF AGE OR OLDER. Please email us with any questions or comments about these Terms of Use or our Content Policy at [email protected].

NOTICE REGARDING DISPUTE RESOLUTION: These Terms of Use contain provisions that govern the resolution of claims between you and DaySmart Appointments.

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.

1. Acceptance and Modification of the Terms of Use

  1. BY ACCEPTING THESE TERMS OF USE, EITHER BY CLICKING TO ACCEPT OR AGREE OR BY DOWNLOADING, INSTALLING, OR USING AND/OR CONTINUING TO USE THE SERVICES, YOU ACKNOWLEDGE AND REPRESENT THAT (A) YOU HAVE READ AND UNDERSTAND THESE TERMS OF USE, (B) YOU ARE 18 YEARS OF AGE OR OLDER, AND (C) YOU ACCEPT AND AGREE TO THE TERMS OF THESE TERMS OF USE WITHOUT LIMITATION OR QUALIFICATION.
  2. IF YOU ARE ENTERING INTO THESE TERMS OF USE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS OF USE, IN WHICH CASE THE TERMS “YOU” AND “YOUR” REFERS TO SUCH ENTITY AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MUST NOT ACCEPT THESE TERMS OF USE, AND YOU MAY NOT ACCESS OR USE THE SERVICES.
  3. We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when posted, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of changes to these Terms of Use means that You accept and agree to such changes. It is Your responsibility to check these Terms of Use periodically for changes, as these changes are binding on You.

2. Access, License, and Privacy

  1. 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.
  2. Provided that you are not under the age of 18 years old, DaySmart Appointments grants you a non-exclusive, non-transferable, revocable worldwide right to use the Services, subject to these Terms of Use (the “License”). You grant to DaySmart Appointments the non-exclusive, worldwide right to use, copy, store, transmit, and display Your Data solely to the extent necessary to provide the Services. You may not reproduce, duplicate, copy, sell, resell, or commercially exploit for any purposes, any portion of, use of, or access to the Services. All rights not expressly granted to you are reserved by DaySmart Appointments and its licensors. In the unlikely event you fail to comply with these Terms of Use, we may terminate the License without notice and You will no longer be permitted to access or use the Services. For the purposes hereof, “Your Data” means any data, information, or material provided or submitted by your users, and any registration information and appointment data provided or submitted by your customers, or by your users on behalf of your customers, to your Scheduler in the course of using the Services.
  3. 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.
  4. If we become aware of possible violations of these Terms of Use, we may initiate an investigation that may include gathering information from you or any user involved and the examination of other material. We may suspend the provision of our Services temporarily, or we may permanently remove the material involved from our servers, provide warnings to you, or suspend or terminate your access to the Services. We will determine what action will be taken in response to a violation at our sole discretion. We will fully cooperate with law enforcement authorities in investigating suspected violations of law.
  5. 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.
  6. 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.
  7. We value your privacy and understand your privacy concerns. Please review our Privacy Policy, which also governs your access to and use of the Services, so that you may understand our privacy practices. All information we collect is subject to our Privacy Policy, and by accessing and using the Services you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. You further understand that any information collected by DaySmart Appointments may be transferred to the United States and/or other countries for storage, processing, and use by DaySmart Appointments and its affiliates. DaySmart Appointments may use online hosting services (such as, for example, Amazon Web Services) in connection with providing the Services (including without limitation, for the purposes of processing and storing Your Data).
  8. 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

  1. To access or use the Services, you will be required to provide certain registration details or other information. It is a condition of your use of the Services that you (i) provide correct, current, and complete information about yourself as prompted by the registration form for the Services (such information being the “Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it correct, current, and complete. You agree that all information you provide to register or otherwise, including, without limitation, through any interactive features of the Services, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. You further agree that DaySmart Appointments may provide any and all notices, statements, and other communications to you through email to the email address provided in the Registration Data. In connection with the Registration Data, you will select a login name and login password. Although we will use commercially reasonable efforts to assign to you the login name and login password, we reserve the right to reject any of your selections, including if such information has been previously assigned to another user, or if we, in our sole discretion, deem such data or information to be offensive or unprofessional.
  2. 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.
  3. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

4. Intellectual Property Rights; Your Data; Copyright Infringement Notification Process

  1. The products, services, and content offered on or through the Services, as well as their selection and arrangement, are protected by intellectual property rights (the “Intellectual Property Rights”), and any unauthorized use of the Services may violate such Intellectual Property Rights laws and these Terms of Use. DaySmart Appointments and its licensors own all right, title, and interest in and to the Intellectual Property Rights of the services and content offered on or through the Services. These Terms of Use do not convey or transfer any ownership rights to you. The trademarks, logos, and service marks displayed on the Services, including, without limitation, “DaySmart Appointments,” are the property of DaySmart Appointments or other third parties. You are not permitted to use these marks without the prior written consent of DaySmart Appointments or such third party that may own the marks. You may not remove or obscure any copyright notice or other proprietary notices contained with the Services or any products, services, or content retrieved through the Services.
  2. All data submitted by you to the Services, whether posted by you, your users, your customers, or other third parties, shall remain the sole property of you or such third parties, as applicable. You, not DaySmart Appointments, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all Your Data, and DaySmart Appointments shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any of Your Data. In the event that you terminate these Terms of Use (other than by reason of a breach by you), DaySmart Appointments will make available to you a file of Your Data within 30 days of a written termination notice received by DaySmart Appointments, if you so request. DaySmart Appointments reserves the right to withhold, remove, and/or discard Your Data, without notice, for any breach, including, without limitation, your non-payment. Upon termination for breach, your right to access or use Your Data immediately ceases, and DaySmart Appointments shall have no obligation to maintain or forward any of Your Data.
  3. 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.
  4. While using the Services, you agree not to engage in any of the following prohibited activities: (i) use, display, mirror, or frame the Services, any individual element within the Services, the DaySmart Appointments name, trademark, logo, or other proprietary information, or the layout and design of any page, without our express written consent; (ii) access the Services by any means other than through the interface provided by DaySmart Appointments and as otherwise expressly authorized under these Terms of Use; (iii) access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers; (iv) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by DaySmart Appointments or any of our providers or any other third party (including another user) to protect the Services; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any of Your Data transmitted through the Services; (vi) attempt to access or search the Services or scrape or download any user content from the Services, or otherwise use or upload content to, or create new links, reposts, or referrals in the Services through the use of any engine, software, tool, agent, device, or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools, or the like) other than the software and/or search agents provided by DaySmart Appointments or other generally available third-party web browsers; (vii) send or post onto the Services any unsolicited or unauthorized spam, advertising messages, promotional materials, email, junk mail, chain letters, or other form of solicitation; (viii) use any meta tags or other hidden text or metadata utilizing the Services or any DaySmart Appointments trademark, logo, or URL without our express written consent; (ix) attempt to decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Services; (x) interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending or posting a virus, overloading, flooding, spamming, or mail-bombing the Services; (xi) reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purpose any portion of the Services (including your account) or your access to or use of the Services; (xii) collect or store any personally identifiable information from other users of the Services without their express permission; (xiii) stalk or otherwise harass another person or entity; (xiv) impersonate or misrepresent Your affiliation with any person or entity; (xv) violate any applicable law or regulation; or (xvi) encourage or enable any other individual to do any of the activities prohibited in these Terms of Use.
  5. 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.
  6. 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

DaySmart Appointments
7000 E Shea Blvd Ste E140
Scottsdale, AZ 85260
Attn: Legal Department

Telephone: 800.988.0061
Email: [email protected]

Please also note that, under the DMCA, any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability. All reports and inquiries will be kept confidential, except to the extent necessary to investigate any alleged violation and enforce the terms and conditions of these Terms of Use. Before sending either a copyright infringement notification or counter-notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with our rights and obligations under the DMCA and do not constitute legal advice. DaySmart Appointments will remove the infringing content, subject to the procedures outlined in the DMCA.

  1. 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.
  2. 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

  1. The License hereunder is granted to you for the fee set forth in your Order Form (the “Fee”). The Fee is payable in advance, irrevocable and non-refundable except as set forth in these Terms of Use. You will provide DaySmart Appointments or our designated payment processing vendor with valid and updated credit card information, or with an Order Form or alternative document acceptable to DaySmart Appointments. If we utilize a third-party payment processing vendor, then additional terms and conditions will apply to your transactions with such vendor. If you provide credit card information, you authorize DaySmart Appointments to charge such credit card for the License, including for the Initial Term(s) and any Renewal Term(s) as set forth in Section 6. You agree, understand, and confirm that the payment information provided by you will be correct and accurate, and that you are using a form of payment that you are legally authorized to use for this purpose. You agree that you are liable for any payment or credit card fraud, abuse, or unauthorized use by you or others.
  2. You shall pay all personal property, sales, use, value-added, withholding, and similar taxes (other than taxes on our net income) arising from the transactions described in these Terms of Use, even if such amounts are not identified herein. To the extent you are exempt from sales or other taxes, you agree to provide DaySmart Appointments, upon request, with the appropriate exemption certificate.
  3. 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.
  4. 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

  1. If you register on our website for a free trial, we will make all or part of the Services available to you on a trial basis, free of charge (the “Free Trial”). The Free Trial will commence upon DaySmart Appointments permitting you to access and use the Services, and will expire upon the earlier of (i) the end of the Free Trial time period for which you registered to use the applicable Services, or (ii) the commencement of your use of the Services on a non-trial basis for payment (the “Free Trial Period”). These Terms of Use will apply to you and the Services during the Free Trial Period.
  2. The initial term for your access to and use of the Services shall commence upon the date you accept these Terms of Use in connection with creating your non-Free Trial account and shall continue for the time period set forth in your Order Form (the “Initial Term”). Upon the expiration of the Initial Term, these Terms of Use shall automatically renew for successive Renewal Terms of equal length as the Initial Term (each a “Renewal Term”) unless (i) DaySmart Appointments has terminated your License prior to the commencement of such Renewal Term, (ii) DaySmart Appointments terminates your License upon the expiration of the Initial Term, or (iii) prior to the expiration of your License, you notify DaySmart Appointments that you do not intend to renew your License.
  3. DaySmart Appointments reserves the right to deny your access to or use of all or part of the Services, without notice, if we believe, in our sole discretion, that you are engaging or have engaged in any conduct or activity that we believe, in our sole discretion, is unprofessional; obscene; violates applicable laws, rules, or regulations; or violates these Terms of Use. You acknowledge and agree that DaySmart Appointments may terminate these Terms of Use pursuant to the terms hereof, and, in connection with such termination, (i) no prior notice is required, and (ii) DaySmart Appointments may immediately deactivate or delete your account(s) and all related information and files, including Your Data, in your account(s), and/or prohibit any further access to such data or files or the Services. You acknowledge and agree that DaySmart Appointments will not be liable to you or any third party in connection with any termination of your access to or use of the Services pursuant to the terms hereof.
  4. 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 receipt of a written request, either by email or by U.S. Mail. 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. If we receive your cancellation request over the phone, cancellation requests will not be processed until we receive confirmation in writing.

    Email: [email protected]
    DaySmart Appointments
    7000 E Shea Blvd Ste E140
    Scottsdale, AZ 85254
    Attn: Client Experience Support Team

7. Disclaimer of Warranties/Limitation of Liability

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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

  1. You agree to indemnify, defend, and hold harmless the DaySmart Appointments Parties for, from, and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, arising out of or relating to any violation of these Terms of Use by you or any other actions connected with your use of the Services. Your indemnification obligations include, without limitation, claims arising out of any of Your Data, as well as any claims arising out of acts or omissions by your employees or agents, and any other person or entity who gains access to the Services through your user names or passwords, either with your permission or as a result of your failure to use reasonable security measures.
  2. DaySmart Appointments will indemnify you for, from, and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, arising out of or relating to a claim, suit, action, or proceeding brought by any third party against you alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright, or trademark, or constitutes a misappropriation of a trade secret of a third party. The foregoing obligations will not apply to the extent the claim arises out of or relates to (a) any use of the Services in a manner other than as specified in these Terms of Use; (b) any use of the Services in combination with other products, equipment, devices, software, systems, or data not supplied by DaySmart Appointments to the extent such claim is caused by such combination; or (c) any alteration, modification, or customization of the Services or any software made by any party other than DaySmart Appointments or DaySmart Appointments’ authorized representatives if such infringement would not have occurred without such alteration, modification, or customization. You will (i) promptly notify DaySmart Appointments in writing of any claim, suit, or proceeding for which indemnity is claimed, provided that failure to so notify will not remove DaySmart Appointments’ obligation except to the extent it is prejudiced thereby, and (ii) allow DaySmart Appointments to solely control the defense of any claim, suit, or proceeding and all negotiations for settlement; provided, however, that DaySmart Appointments may not settle or compromise any such claim without your prior written consent, not to be unreasonably withheld, conditioned, or delayed, unless such settlement or compromise (1) includes an unconditional release of you from all liability arising out of such claim, or (2) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of you. You will also provide DaySmart Appointments with reasonable cooperation and assistance in defending such claim (at our cost).
  3. 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

Your breach of these Terms of Use may result in immediate and irreparable harm to us, for which there may be no adequate remedy at law, and, therefore, you agree that we are entitled to equitable relief to compel you to cease and desist all unauthorized use, evaluation, and disclosure of information obtained through the Services, which is in addition to any other remedies available at law or in equity.

10. Governing Law

These Terms of Use shall be governed by the laws of the State of Arizona and controlling U.S. federal law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction will not apply to these Terms of Use. Any legal action or proceeding relating to these Terms of Use shall be instituted in a state or federal court in Maricopa County, Arizona, and each party hereby submits to the personal jurisdiction of such courts and waives any defense relating to venue or forum non convenience.

11. Legal Compliance

  1. 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.
  2. You have not received nor have you been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employee or agents of DaySmart Appointments in connection with these Terms of Use. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
  3. 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

A waiver of any breach of any provision of these Terms of Use is not a waiver of any repetition of such breach and will not in any manner affect any other terms or conditions of these Terms of Use. We do not waive any rights by the failure to enforce any provision of these Terms of Use in every instance in which it might apply. In the event that any provision of these Terms of Use is held to be unenforceable, it will not affect the validity or enforceability of the remaining provisions, and will be replaced by an enforceable provision that is the closest to the intention underlying the unenforceable provision.

13. Assignability

We may assign our rights and delegate our duties under these Terms of Use, either in whole or in part, at any time without notice. You may not assign, sublicense, or otherwise transfer your rights or obligations, in whole or in part, under these Terms of Use to anyone else without our prior written consent.

14. Relationship

This Agreement does not establish any relationship of partnership, joint venture, employment, franchise, or agency between you and us.

15. Notice

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 delivered by nationally recognized overnight delivery service or first-class postage prepaid mail to DaySmart Appointments at 7000 E. Shea Blvd. Ste E-140 Scottsdale, AZ 85254.

16. Integration and Modification

These Terms of Use, together with (i) any applicable order document produced and executed by DaySmart Appointments (each an “Order Form”), and (ii) any applicable Business Associate Agreement entered into and executed by the parties (a “BAA”), represents the parties’ entire understanding relating to the Services, and supersedes any prior or contemporaneous, conflicting, or additional communications. Nothing contained in any purchase order submitted by you other than order dates, identity, location, quantity, and price shall in any way serve to modify or add to these Terms of Use or an Order Form. In the case of a conflict between these Terms of Use, the Order Form, or a BAA, unless expressly stated otherwise in the document that it shall control over all other documents, the order of precedence shall be: (1) these Terms of Use, (2) the BAA, and (3) the Order Form.

QUESTIONS OR ADDITIONAL INFORMATION

If you have questions regarding this Agreement or wish to obtain additional information, please send an email to [email protected].

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