Service Agreement Terms
SERVICE AGREEMENT TERMS
Version 5
Last Updated: September 9, 2024
IMPORTANT – PLEASE READ THESE SERVICES AGREEMENT TERMS AND CONDITIONS CAREFULLY. BY PLACING AN ORDER OR OTHERWISE USING THE SYSTEM: (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU REPRESENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT USE THE SYSTEM.
This Agreement governs your (“you” or “Center”, the entity identified in the applicable Order) use of the System offered by WMG Technology Solutions LLC, DBA WatchMeGrow (“WatchMeGrow” or “WMG”). WatchMeGrow provides a system (including software and hardware) to allow the Internet viewing of the activities of the Center and the management of a service to individuals to use the System; and Center provides childcare services and wishes to make available the ability to view the children while in the Center’s care (“Children”) as a benefit to the parents of the Children (“Parents”). The terms and conditions of this Agreement are hereby incorporated by reference into any Order between the parties referencing this Agreement. In the event of a conflict between this Agreement and an Order, the Order shall control solely to the extent that a Section hereunder is specifically referenced. In consideration of the mutual promises contained herein, the parties hereby agree to the following:
1. Definitions:
1.1. Agreement means this Services Agreement; any Orders for the System; any Schedules made a part hereof and attached hereto; and any amendments to the Services Agreement or Schedules.
1.2. Confidential Information means this Agreement and any terms hereto, information regarding the System, products, prices, costs, discounts, future plans, business affairs, processes, trade secrets, technical matters, customer lists, product design, software, technical know-how, and other vital information concerning past, present or future research, development, business activities, affairs, finances, properties, methods of operation, processes and systems or agreements related to the business of WatchMeGrow. Confidential Information also means the names, addresses, email and other personal information of parents and children who are the customers or employees of the Center.
1.3. Order means an order referencing this Agreement and signed by the parties for the System specifying the particular hardware, software, and/or services to be provided. Each Order shall be effective upon signature by both parties as of the Order Effective Date set forth in the applicable Order and shall continue for the Order Term specified in the Order unless terminated sooner as permitted by this Agreement or the applicable Order.
1.4 Services means the System Hardware, System Software, and any other services provided by WMG under this Agreement.
1.5. System means the System Hardware and System Software provided by WatchMeGrow to deliver live streaming video and/or audio and optional digital recording to Center and Center’s families and any other features identified in the applicable Order.
1.6. System Hardware means the items provided by WatchMeGrow as defined in the applicable Order. For the avoidance of doubt, the System Hardware expressly excludes any non-WatchMeGrow hardware, including without limitation, any on-site wiring or connectivity devices at the Center.
1.7. System Software means the proprietary streaming video software, web-based user interface platform, and the features and functionality of each of the foregoing, licensed by WatchMeGrow to Center that facilitates streaming video and/or audio via the Center’s System Hardware.
2. Term. This Agreement shall be effective upon the Effective Date and shall continue until terminated by either party as permitted in this Agreement (“Term”). Either party may terminate this Agreement for convenience with thirty (30) days prior written notice if there are no then-existing Orders in effect. Either party will have the right to terminate this Agreement and all Orders for breach of any material term or condition of this Agreement (or with respect to an Order, a breach of a material term or condition of such Order) and failure to cure such breach within thirty (30) days after written notice. Either party may terminate this Agreement and all Orders upon written notice if: (i) the other party becomes insolvent or voluntary or involuntary bankruptcy proceedings are instituted by or against such other party; (ii) the other party makes an assignment for the benefit of creditors or ceases to operate as a going concern; or (iii) a receiver is appointed for such other party. If this agreement is terminated or expires for any reason, (a) all amounts due to WatchMeGrow become immediately due and payable and (b) all licenses for the System Software terminate immediately and the System Software and Confidential Information of WatchMeGrow must be returned by Center to WatchMeGrow. All provisions that by their nature survive termination or expiration shall survive, including but not limited to limitations of liability, warranty disclaimers, and indemnification. Upon termination or expiration of this Agreement: (1) Center will cease use of all System Software, and (2) Center will return any System Software, leased System Hardware, or System Hardware that has not been paid for in full by Center (including, without limitation, the servers provided by WatchMeGrow). Failure to return any System Software, leased System Hardware, or System Hardware that has not been paid for in full by Center will result in a $10,000 fine to Center.
3. Payment/Fees. Center agrees to pay the fees set forth in the applicable Order. All amounts are non-refundable. Any fees with due dates not expressly identified in the applicable Order shall be due within thirty (30) days following receipt of invoice by WMG. All fees are subject to a finance charge of one and a half percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property, and similar taxes, if any. Center will be responsible for the payment of their Internet Service (ISP) (WatchMeGrow will be happy to research the ISP products available in your market on your behalf). Center is responsible for the cost, operation, and maintenance of any hardware not provided by WatchMeGrow that may connect to the same ISP service, including network setup, hardware additions, and any PC-related technical service that is not part of the WatchMeGrow System. Center may authorize WatchMeGrow to automatically direct payment of all amounts due from Center’s bank directly to WMG. WMG may increase the fees of any Order annually by giving Center at least one hundred twenty (120) days’ notice of such price increase prior to the expiration of the then-current subscription term.
4. System Software License; System Features.
4.1 License Grants.
a. Center acknowledges that WatchMeGrow owns the System Software and that WatchMeGrow retains the ownership and title to the System Software. All applicable rights to patents, copyrights, trade and service marks and trade secrets, and other intellectual property in the System Software shall remain the sole and exclusive property of WatchMeGrow. Subject to the provisions of this Agreement and for the term thereof, WatchMeGrow grants to Center a non-transferable, non-exclusive limited license to: (i) use the System Software, and (ii) provide Authorized Centers with access to the System Software. “Authorized Center” shall mean a childcare center under Center’s control for which Center has authorized access to the System Software, and for which all applicable Fees in the Order Form (including as set forth in Attachment A) have been paid. Center acknowledges and agrees that such Authorized Centers are bound to the terms set forth in this Agreement, and Center is responsible for: (i) providing all requisite notices to Authorized Center, and (ii) any acts or omissions of an Authorized Center in connection with this Agreement, or Center’s use of the System Hardware or System Software. WatchMeGrow and/or its suppliers may monitor Center’s, and its Authorized Centers’ use of the WatchMeGrow services and audit applicable records, in each instance, to verify Center’s compliance with this Agreement (including, without limitation, Schedule B set forth herein). The license grants to Center set forth herein are subject to the following restrictions: a) Center shall use the System Software solely in connection with this Agreement; b) System Software (including any individual features of the System Software made available by WMG and/or its licensors) will be used and installed solely at the Location and solely used on the System Hardware or Center-owned Hardware and not on a stand-alone basis; c) Center shall not reverse compile, decompile, disassemble, reverse assemble or reverse engineer the System Software or any portion thereof, except to the extent that the foregoing requirement is prohibited by law (in which case, Center agrees to provide WMGat least ninety (90) days advance written notice of its belief that such action is warranted and permitted); d) Center shall not (i) sell, lease, license, sublicense or otherwise transfer in whole or in part, the System Software or related documentation to any third party, (ii) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the System Software, (iii) translate or modify the System Software, and (iv) permit any use of or access to the System Software by any third party, or operate the System Software on behalf of or for the benefit of any third party; and (e) the System Software will not be copied or reprinted in whole or in part except as expressly permitted herein. Center shall not modify the System Software or merge such software into other programs or create derivative works based on such software. Center shall not delete or cause to be deleted the System Software from the System. Notwithstanding any other term of this Agreement, violation of this System Software license shall constitute an event of default and Center will be liable for all damages to the System Software in addition to any other remedy available to WatchMeGrow under this Agreement. All tangible objects containing or relating to System Software, such as any documentation or instruction, are the sole and exclusive property of WatchMeGrow. In the event that upgrades are delivered to the Center, the Center will promptly return any and all tangible objects relating to the System Software.
b. WMG may use video footage captured by the System Hardware (“Video Footage”) (i) during the Term for the purposes of operating the Services, including by storing any such Video Footage on WMG’s server at the Center, or in the cloud with our Hosting Provider (as defined below); and (ii) during and after the Term to improve the Services, and WMG’s related products and services and provide analytics and benchmarking services.
4.2 Hosting. WMG currently uses Amazon Web Services (AWS) and may use other third-party data hosting providers (each, a “Hosting Provider”), which utilize industry-standard protocols designed to ensure the availability of its services, including, an industry-standard business continuity plan. By agreeing to the terms of this Agreement, Center acknowledges the sufficiency of WMG’s Hosting Provider.
4.3 White Labeling. If WatchMeGrow allows Center to integrate the WatchMeGrow service with Center’s application (“Center Application”), without limitation, in connection with granting services to Authorized Centers, Center agrees to provide all software development work necessary to achieve integration with the Software Services. For the avoidance of doubt, development and deployment of the Center Application are subject to WatchMeGrow’s reasonable discretion, and WatchMeGrow reserves the right to reject a Center Application if it does not meet WatchMeGrow’s requirements as provided to Center from time to time. Center will also be responsible for requiring Center’s users to enter into a terms of use agreement substantially similar to WatchMeGrow’s Terms of Use. In an integrated application environment, Center further agrees that it shall be responsible for providing all end-user support to Authorized Centers (including, without limitation, to any end users) for the Center Application. Each party (“Licensor”) hereby grants to the other party a non-exclusive, non-transferable, revocable license to reproduce and use Licensor’s logos and trademarks (“Licensor Marks”) for the purpose of providing or receiving the services hereunder, including, without limitation, the provision of the Center Application. Licensor shall retain all right, title and interest (including all intellectual property rights) in and to the Licensor Marks, and the other party shall not act or fail to act in a manner inconsistent with such ownership nor use the Licensor Marks in any way other than as specifically provided herein. All uses of the Licensor Marks, and all goodwill and intellectual property rights therein, shall inure to the benefit of Licensor and its suppliers. The Center Application must contain a mutually agreed, conspicuous and legible statement of the relationship
in the following form: “powered by
”
4.4. Additional System Features. If selected on an applicable Order Form, and for an additional fee, you may have access to certain add-on features including, without limitation, WatchMeGrow Alerts, Shareable Moments, and Smart Observations, or any other features described on an Order Form.
a. Alerts. At locations where the System Hardware is installed, the System Software may be able to detect (i) when a child is left unsupervised, and (ii) an individual’s presence on the Center’s premises, including in outdoor areas. If the System registers one of the foregoing, then WatchMeGrow will notify Center by sending an alert message (each, an “Alert”) to the cellular telephone number or email address provided by Center. The Alerts will not function (1) with the loss of critical electrical power, including without limitation the loss of power to the System Hardware; (2) if the wireless or broadband internet connection is not operational; (3) if the mobile device used for this service does not have the minimum battery life; or (4) other force majeure events cause the quality of the broadband connection to deteriorate, including without limitation network congestion. Your acceptance of these Service Agreement Terms constitutes your acknowledgement that WatchMeGrow has advised you of these potential limitations. Without limiting Section 8 below, the System, including the Alert feature, is not intended to be a replacement for childcare and should not be relied on as a security system or for any other emergency purposes. As further described below, there are no guarantees that any child will be detected by the System as being left unsupervised, and there are no guarantees that individuals on the Center’s premises will be detected. Without limiting items (1) – (4) above, there may be factors outside of WatchMeGrow’s control, such as camera angles, lighting, particulates in the air, or other factors that impact whether the System detects the events described above.
b. Shareable Moments. At locations where the System Hardware is installed, the System Software may be able to recognize visible objects, items, or physical traits, and may be able to distinguish between children and adults. Over time, the System Software may automatically identify positive interactions by and between students and teachers at the Center (collectively, “Shareable Moments”). Shareable Moments will be made available to Center administrators directly through the System Software. Once reviewed and approved by Center, Center may, at its discretion, elect to share certain Shareable Moments via the System Software with parent users.
c. Smart Observations. At locations where the System Hardware is installed, Center may have the opportunity to review automatically generated clips of teachers in session that are captured by the System Hardware. These clips can be used to evaluate teacher performance. The System Software will learn to identify and recognize teachers’ strengths and provide opportunities for Center to offer interventions.
d. Saved Clips. Center may activate a feature through the System Software to record Video Footage. If such feature is elected, all Video Footage will reside on the WatchMeGrow server at the Center with the exception of any Video Footage Center elects to save, which may be stored with our Hosting Provider.
4.5. Open Source. Certain items of software that may be provided to Center as part of the System Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 4.1. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Services Agreement limits Center’s rights under, or grants Center rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, WatchMeGrow makes such Open Source Software, and WatchMeGrow’s modifications to that Open Source Software, available by written request at the notice address specified herein.
5. Repairs and Maintenance. Center shall promptly inform WatchMeGrow of any Systems issues so WatchMeGrow can use commercially reasonable efforts to correct them as soon as possible. Center agrees to use commercially reasonable efforts to repair any non-WatchMeGrow camera system hardware that is not functioning correctly as soon as possible. Center agrees to make no modification of or attempt to perform repairs or maintenance of any kind to the System unless directed by WatchMeGrow in writing. WatchMeGrow shall pay all costs relating to the repair and maintenance of System Hardware during the Initial Term, provided that the System Hardware has not been subject to use of the System in violation of this Agreement or any applicable documentation, modification of the System Hardware without WatchMeGrow’s written authorization, combination of the System Hardware with any software or hardware not provided by WatchMeGrow, or unreasonable operation, vandalism, or acts of nature; in any and all such cases, Center will be charged in accordance with WatchMeGrow’s or its independent contractor’s then prevailing rates. Repairs and maintenance on any upgrade or optional hardware (as may be listed in the applicable Order, if applicable), are not subject to WatchMeGrow’s obligations under this Section 5 and are subject to the manufacturer’s warranty only. WatchMeGrow provides service and support for Digital Video Recording (DVR) hardware and software in accordance with Section 5 but does not provide monitoring verifying correct recording operation. As such, DVRs and digital recording software must be checked by Center on a regular basis to confirm that the hardware is recording properly. It is Center’s sole responsibility to back up Video Footage that needs to be saved permanently to another storage medium. WatchMeGrow does not guarantee that Video Footage will be uninterrupted or complete, or that that there is adequate storage space on WatchMeGrow’s server to retain a portion or any of the Video Footage. WatchMeGrow is not responsible for any type of remote video backup, storage or retrieval services and is not responsible for any lost video for any reason, and WatchMeGrow expressly disclaims any liability related to the Video Footage and the use or inability to use the Video Footage. After the Initial Term of the agreement, during the Renewal Term, System Software will continue to be provided as per this agreement and WatchMeGrow will continue to provide System Hardware monitoring, coordinate maintenance and cover diagnostic troubleshooting costs for any System Hardware that requires service as per this Agreement, however, WatchMeGrow will not be responsible for replacement or any associated labor or materials costs of System Hardware after the Initial Term with the exception of the replacement of the WatchMeGrow Video Server which will be replaced as necessary during the renewal term as per the terms and conditions defined in this agreement until exceeding its useful life to the point where replacement parts for the originally provided WatchMeGrow Video Server are no longer available; in the event that the WatchMeGrow Video Server is replaced by WatchMeGrow in accordance with the foregoing, the replacement server will be the property of WatchMeGrow. Center will have the option of entering into a subsequent Service Agreement during the renewal term to cover the System Hardware other than the WatchMeGrow video server, subject to payment of applicable fees and expenses. Notwithstanding any of the foregoing, WatchMeGrow does not provide repairs or maintenance on hardware or wiring that was NOT provided by WatchMeGrow, or other items or Center’s PC network unless otherwise negotiated with WatchMeGrow. WatchMeGrow will not be obligated to provide any of the foregoing repair and maintenance services if Center has one (1) or more open invoices that are sixty (60) days or more past due until payment is made to bring Center’s account current.
6. Center Obligations.
6.1. Parental Notice. It is the Center’s sole responsibility to provide notice to and obtain signed consent from all individuals that will be video and/or audio recorded on its premises by the System, including, but not limited to, all families enrolling children at the Center, all employees of the Center, and all visitors to the center. Center represents and warrants that any consents obtained related to video and/or audio recordings on its premises shall be substantially similar to the release set forth on our website here (the “Sample Form”). Upon request, from time to time, Center shall provide WMG with sample executed release forms, in the quantities reasonably requested by WMG, for the purpose of verifying Center’s compliance with this Section 6.1. For the avoidance of doubt, the Sample Form is not, and should not be considered, legal advice and Center is responsible for ensuring that any release form used is compliant with applicable law. All parents enrolling in the Center must be advised that children at the Center can be viewed over the Internet using the System, including in Sharable Moments sent directly to parent users by Center administrators. In addition to any requirements imposed by law, Center will also post a sign and notify parents by any way Center deems practical that the Center is now offering the WatchMeGrow System.
6.2. Relocation and Possession. Center shall at all times keep the System in its sole possession and control at the Location identified in the Order. Center shall not move any part of the System without first obtaining the written consent of WatchMeGrow. Any and all cost incurred as a result of such relocation shall be borne by Center. Any charges or payments due shall not abate during the period the System is out of service due to any such relocation. Center shall permit WatchMeGrow on its premises to inspect the System during normal business hours upon WatchMeGrow’s reasonable request.
6.3. Communications Access. Center will cooperate and allow access to WatchMeGrow or third party to install any communication access devices necessary to connect the System to WatchMeGrow.
7. Ownership of System. The System Software, all modifications, improvements, and upgrades thereto, and all related intellectual property rights therein will remain the sole and exclusive property of WatchMeGrow. Center shall have no right, title, or interest therein, except for the limited access rights provided in this Agreement during the Term. The System Hardware shall remain personal property regardless of whether affixed to real property, and Center agrees that it shall not obscure, remove, tarnish or blemish any markings or notices on the System Hardware. If applicable, Center agrees to execute and obtain the execution of all agreements and documents in recordable form by all parties having an interest in real property to which the System Hardware may be affixed, as WatchMeGrow may request, to protect WatchMeGrow’s title to the System Hardware. Notwithstanding anything to the contrary herein, Center agrees that all System Hardware sold to Center hereunder shall be secured by a security interest in such System Hardware and any proceeds thereof and in any receivables related thereto including any Center loan paper until WatchMeGrow has been paid in full for such System Hardware. Center agrees to execute financing agreements, a security agreement, and such other documentation and take such other actions as WatchMeGrow may require to evidence and perfect such security interest.
8. WatchMeGrow Warranties; Disclaimer.
Warranties. During the Initial Term of the applicable Order, WatchMeGrow warrants that the System will perform in material conformance with this Agreement. The sole and exclusive remedy for a warranty claim in accordance with this Section by the Center against WatchMeGrow is the repair or replacement of the material defect. This warranty shall not apply to the extent that the nonconformance occurs because (a) the System has not been used in accordance with the applicable documentation or WatchMeGrow’s reasonable instructions; (b) the System has been altered or modified by Center; or (c) of the malfunctioning of Center’s hardware or software. All warranty claims must be made in writing within a 12-month period from discovery or any claim based upon any warranty is waived. This warranty is void if any other person or entity other than WatchMeGrow attempts to repair or replace. EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS SECTION 8, THE SYSTEM IS PROVIDED "AS-IS," AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND. WATCHMEGROW AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
Detected Events Disclaimer. CENTER ACKNOWLEDGES AND AGREESTHAT: (I) THE SYSTEM SOFTWARE IS DESIGNED TO RECOGNIZE CERTAIN OBJECTS, INDIVIDUALS, AND INTERACTIONS (COLLECTIVELY, “DETECTED EVENTS”) BASED ON IMAGES AND/OR VIDEO FOOTAGE CAPTURED BY THE SYSTEM HARDWARE, AND THAT SUCH RECOGNITION IS DEVELOPED OVER TIME BASED ON INPUTS PROVIDED TO THE SYSTEM (COLLECTIVELY, “INPUTS”): (B) ANY OUTPUTS AND RESPONSES PROVIDED TO YOU VIA THE SYSTEM, INCLUDING WITHOUT LIMITATION ALERTS, SHAREABLE MOMENTS, OR SMART OBSERVATIONS, (“OUTPUTS”) ARE WHOLLY DEPENDENT UPON CENTER’S INPUTS; AND (C) THE ABILITY OF THE SYSTEM SOFTWARE TO RECOGNIZE DETECTED EVENTS, AND PROVIDE OUTPUTS IS DEPENDENT UPON THE QUALITY AND VOLUME OF CENTER’S VIDEO FEED, AND THAT EXTERNAL FACTORS, SUCH AS, LIGHTING, WEATHER, VIDEO RESOLUTION OF CONNECTED SYSTEM HARDWARE, INTERNET SPEEDS AND THIRD-PARTY INTERFERENCE MAY DEGRADE THE QUALITY THEREOF. WATCHMEGROW MAKES NO WARRANTY OR GUARANTEE REGARDING THE OUTPUTS, INCLUDING THE ACCURACY OR RELIABILITY THEREOF.
No Reliance on the System. WATCHMEGROW’S SYSTEM CANNOT ELIMINATE OCCURRENCES OF CERTAIN EVENTS, INCLUDING, BUT NOT LIMITED TO, TRESPASSING, MEDICAL EMERGENCIES, OR OTHER EMERGENT OR DANGEROUS SITUATIONS AT A CENTER (EACH, AN “INCIDENT”). WATCHMEGROW MAKES NO GUARANTEE OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE SYSTEM AND SERVICES PROVIDED WILL DETECT OR AVERT SUCH INCIDENTS OR THEIR CONSEQUENCES. CENTER ACKNOWLEDGES AND AGREES THAT THE SYSTEM, INCLUDING THE SYSTEM SOFTWARE, (I) IS NOT A REPLACEMENT FOR CHILDCARE, AND (II) IS NOT INTENDED TO BE USED AS A SECURITY SYSTEM OR FOR OTHER EMERGENCY PURPOSES; THE SYSTEM, INCLUDING THE SYSTEM HARDWARE AND SYSTEM SOFTWARE SHOULD NOT BE RELIED ON FOR CHILDCARE OR EMERGENCY PURPOSES. IN THE EVENT OF AN EMERGENCY PLEASE DIAL 911.
CENTER ACKNOWLEDGES THAT IT IS CENTER’S RESPONSIBILITY TO EDUCATE ITS PERSONNEL ON HOW TO RESPOND TO AN EMERGENCY. IT IS CENTER’S RESPONSIBILITY TO ADHERE TO LOCAL REGULATIONS WITH RESPECT TO THE CARE AND SAFETY OF CHILDREN. INFORMATION RECEIVED VIA THE SERVICES SHOULD NEVER BE A SUBSTITUTE FOR THE IN-PERSON MANAGEMENT OF CLASSROOM. NOTIFICATIONS PROVIDED THROUGH THE SERVICE, INCLUDING ALERTS, ARE NOT INTENDED AS A SUBSTITUTE FOR AUDIBLE AND VISIBLE INDICATIONS OF CERTAINTY THAT CHILDREN ARE SUPERVISED, OR THAT THERE IS A PERSON DETECTED, OR FOR A THIRD-PARTY THAT MONITORS OR ALARMS THE FACILITY.
9. Service Level Agreement. WatchMeGrow agrees to use its best effort to maximize its uptime and network accessibility during Center’s operating hours. Center acknowledges that uptime and network accessibility is often beyond the control of WatchMeGrow, primarily pertaining to Center’s Internet Service Provider (SIP) and electrical power, and further acknowledges that WatchMeGrow will not be held responsible for downtime resulting from factors beyond its control. The target up-time for online services is 98% each month. All services are continuously monitored to ensure rapid response to any faults, which may occur. Monitoring is carried out on all primary services. The service level guarantee will be measured by WatchMeGrow and is based on the up-time. If WatchMeGrow determines that services were unavailable for period exceeding the maximum allowable under the prescribed up-time target, and extending for a continuous duration of 12 hours or more per instance, upon the customer’s request, WatchMeGrow will credit the customer’s monthly invoice the prorated charges of one (1) day of the WatchMeGrow services fee for each consecutive 24 hours, up to a maximum of 30 days per month. To receive credit if this guarantee has not been met, the customer must contact WatchMeGrow within 30 days of the end of the month for which credit is requested. If services have been offline for five or more consecutive days as defined herein and WatchMeGrow has not communicated a correction plan, center may terminate this agreement.
10. Center Representations and Warranties. Center warrants and represents that all legal action has been taken to permit Center to execute and perform this Agreement; its entering into and performance of this Agreement will not violate any law or regulation applicable to Center; this Agreement constitutes a legal, valid, and binding obligation, enforceable against Center in accordance with its terms; all financial or other statements furnished or made to WatchMeGrow are true and correct in all material respects; Center, if a corporation, is in good standing in the state of incorporation; and Center is entitled to own property and to carry on a business in the state where the System Hardware is to be located. In addition, Center represents and warrants that it will comply with all laws, rules, and regulations (including without limitation, all applicable U.S. export laws and regulations) through its use of the Services and shall not engage in any tortious activity through its use of the Services. Center also represents that it will notify WatchMeGrow of any limitations to access to any child in Center’s care and that all subscription forms submitted are signed by a custodial parent who has received all necessary notices and provided all consents required by law.
11. Limitation of Liability. EXCEPT FOR PAYMENTS MADE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, (A) NEITHER PARTY, NOR WATCHMEGROW’S SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOST SAVINGS, OR FOR LOST PROFITS, EVEN IF SUCH PARTY IS INFORMED OF THEIR POSSIBILITY AND (B) THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID OR OWED BY CENTER TO WATCHMEGROW IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. Remedies. Upon the occurrence of a default by Center and at any time thereafter, WatchMeGrow may terminate this Agreement and in so doing Center shall pay to WatchMeGrow, as an early termination fee and not as a penalty, (i) all payments due at time of default; (ii) any expenses incurred in connection with the repossession, holding, repair, appraisal, transportation and disposition of the System Hardware, if applicable in cases where Center is leasing the System Hardware or has not made payment in full for the System Hardware, including reasonable attorney fees and costs; and (iii) all future license fee payments to WatchMeGrow currently scheduled under any outstanding Orders, each of which unpaid payments and other amounts shall be discounted to present value at an annual rate of 5%. Whether or not this Agreement is terminated, Center grants to WatchMeGrow the right upon default to enter into the Location upon 24-hour notice and, without liability for doing so, to take possession and remove the System Software at Center’s sole cost and expense; free and clear of any rights of Center. The receipt of any payment from the customer after default shall not be deemed a waiver or forfeiture of the right to terminate and take possession of the System Software. Upon termination of this Agreement for any reason, Center, at its sole cost and expense shall return the System (except for Center-owned System Hardware) and all Confidential Information, in good repair, condition and working order, normal and ordinary wear and tear excepted, by delivering it to a common carrier selected and designated by WatchMeGrow, F.O.B. to the destination designated in writing by WatchMeGrow.
13. Confidential Information. Each party agrees to keep the Confidential Information of the other party confidential and to take all reasonable precautions, at least to the same degree of care and precautions the recipient would take to protect the confidential nature of its own information, not to disclose copy, distribute or otherwise disseminate the Confidential Information to any third parties. The receiving party may disclose the Confidential Information of the disclosing party only (a) with the disclosing party’s authorization or (b) to those employees, agents and subcontractors who have a legitimate business reason to have such access for purposes of performing its obligations under this Agreement and are subject to the requirement to abide by a non-disclosure agreement substantially similar to this Agreement non-disclosure obligations. The receiving party may use the Confidential Information of the disclosing party only in furtherance of the exercise of its rights and performance of its obligations under this Agreement. A violation by either party, its officers, employees or agents of this paragraph shall be a material violation of this Agreement and will justify legal and/or equitable relief. Neither party shall be prohibited by this provision from pursuing other remedies, including a claim for losses and damages. The confidentiality provisions of this Agreement shall remain in full force and effect for a three-year period after the termination of this Agreement.
14. Indemnification. Center agrees to indemnify and hold WatchMeGrow harmless from and against claims, actions, suits, liabilities, or other proceedings for any loss or damage (including but not limited to attorney fees, costs, and expenses), arising out of or in connection with Center’s use of the System or the Services provided by WatchMeGrow to Center including, but not limited to, any breach of this agreement or use of the System in violation of law, rule, regulation, or a third party privacy or publicity right, which indemnification shall exclude faulty installation of System Hardware.
15. Miscellaneous.
15.1. Governing Law. This Agreement shall be interpreted, construed and enforced according to, and governed by, the laws of the State of Washington. Each party expressly submits to the exclusive, personal jurisdiction of the federal and state courts situated in the State of Washington in the County of Thurston with respect to any cause of action asserted or filed by any party in any way relating to, or arising out of this Agreement or the subject matter thereof.
15.2. Default. For clarity, the following items constitute a material breach by Center: Center fails to pay any one or more monthly payments, or any other amount accruing under this Agreement, when due; Center violates any term or condition of this Agreement; Center files a bankruptcy petition; a bankruptcy petition is filed against Center which is not dismissed within 60 days; or Center is operated illegally under any State, Federal or municipal law.
15.3. Risk of Loss. Upon delivery of the System Hardware to Center, Center shall bear the entire risk of loss, damage, theft or destruction and shall not relieve Center of its obligations to make payments under this Agreement. In the event of such loss, damage, theft or destruction, Center shall promptly notify WatchMeGrow, which shall within 30 days repair or replace such System Hardware, at Center’s sole cost and expense.
15.4. Insurance. Center shall at all times, carry and maintain, at its expense, insurance covering: a) theft and all risks of loss or damage from any cause whatsoever including earthquake and flood for an amount not less than the full replacement value of the System, and with WatchMeGrow and its assigns as loss payee; and b) public liability insurance, both personal injury and property damage, covering the maintenance, use and operation of the System and which names WatchMeGrow and its assigns as an additional insured. All such insurance shall be in form, amount, and with companies satisfactory to WatchMeGrow and its assigns. Center hereby appoints WatchMeGrow and its assigns, as Center’s attorney-in-fact with respect to endorsement of all documents, checks, or drafts for loss or damage recoverable under all such insurance policies.
15.5. Assignment. Center shall not sublease, transfer or assign this Agreement or any portion thereof, or any right or obligation hereunder, unless Center has obtained prior written consent from WatchMeGrow, which shall not be unreasonably withheld. WatchMeGrow shall have the right to sell, transfer, assign for security or otherwise, or delegate its interests, rights and/or obligations hereunder without notice or the prior consent of Center. WatchMeGrow shall be released of all obligations after the effective date of any such sale, transfer, delegation or assignment provided that the transferee or assignee assumes all of WatchMeGrow’s obligations under this Agreement.
15.6. Notices. All notices shall be in writing and shall be given by mail, private carrier, fax, or email. Notice to WatchMeGrow shall be given to the following address and notices to center shall be delivered to Center’s address:
WMG Funding LLC d/b/a WatchMeGrow
2625 Willamette Dr NE
Lacey, Washington 98516-1312
Fax: 360-528-2536
15.7. Uniform Commercial Code. Center hereby makes, constitutes and appoints WatchMeGrow and its assigns its true and lawful attorney and agent to execute, deliver and file any Uniform Commercial Code financing statements and other documents that WatchMeGrow and its assigns deem necessary or advisable in order to protect WatchMeGrow’s rights to the System. This power being coupled with an interest shall be irrevocable for the term of this Agreement. The parties agree that a carbon, photographic or other reproduction of this Agreement may be filed as a financing statement under the Uniform Commercial Code.
15.8. General. This Agreement constitutes the entire understanding between the parties and supersedes all negotiation, representations, prior discussions and preliminary agreements between the parties relating to the subject matter of this Agreement. In executing this Agreement, each party acknowledges that its does not rely on any inducements, promises or representations of the other party or any agent of the other party, other than the terms and conditions specifically set forth in this Agreement. WatchMeGrow retains the right to modify the System Software and the System at any time. Such modifications shall not impair Center’s access and use of the System as set forth in this Agreement. This terms and conditions of this Agreement may be modified or amended by WatchMeGrow from time to time in its sole discretion by providing notice to Center; provided that such changes shall not apply retroactively and will become effective thirty (30) days after notice to Center. If any provision, or part thereof, of this Agreement is determined to be unenforceable or prohibited, all remaining provisions shall remain in full force and effect.
15.9. Government Terms. The System Software and any accompanying documentation shall constitute "commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the System Software and documentation by or for the U.S. Federal Government shall be governed solely by the terms and conditions of this Services Agreement to the maximum extent permitted by law.
15.10 Surviving Terms. In the event of termination of this Agreement, all terms for the collection of funds shall remain in full force and effect until all sums due WatchMeGrow have been paid in full. A failure or delay of either party to require strict enforcement or to enforce a term or condition of this Agreement shall in no way be construed as a waiver or continuing waiver of any term or condition of this Agreement. Without limiting the generality of Section 7 herein, if for any reason, this Agreement is deemed to not be a lease, Center hereby grants WatchMeGrow as a security interest in the System Hardware. Center agrees to execute any and all documents and filings to perfect the same. Except as otherwise stated herein, no term or condition of this Agreement may be amended, altered, waived, discharged or terminated except by written instrument signed by the party to be bound.
Schedule A
Installation & Setup
The following will apply to the installation of your WatchMeGrow System (“Installation”). For consideration that Center and WatchMeGrow agree as sufficient, Center and WatchMeGrow agree as follows:
1. Camera & Hardware Locations: Center will approve the proposed plan for installation of the cameras, servers, and other equipment (the “Camera Plan”) prior to installation. Cameras will be ceiling mounted or at the existing wiring location if wiring is already in place. In some instances, the cameras cannot be ceiling mounted and wall-mounting is required. Wall-mounting may require additional equipment, which will come with an increased cost as set forth on an applicable Order Form. The ideal WatchMeGrow Server Installation Location (Head End) is the network closet where your router is located (if your router will not be in your network closet, or if there isn’t sufficient space in the network closet, it will be necessary for your contractor to run a Cat6 data cable from your router to your WatchMeGrow server) or some other “out of the way” location. Our application is “web based” and thus accessible via your PC whether you are at the Center or elsewhere - the WatchMeGrow server does not have a graphical user interface (GUI) that will allow you to view the cameras on the PC LCD connected to the WatchMeGrow server (this LCD Is only for setup and diagnostics). Center understands that any Center requests to move any hardware after the camera plan has been finalized will require the camera plan to be redrafted and approved by Center. Center further understands that moving any hardware after wiring and/or installation will only be performed with center’s approval and that Center will be billed accordingly if necessary. Center will be responsible for any additional costs or expenses associated with adjusting the Installation outside the scope of the initially approved Camera Plan.
2. Viewing Live Camera Video on TVs: We offer several options for viewing live video while you are at your center; Admin Display Software (allows you to view cameras via your PC in a variety of configurations), WMG TV (provides “always on” dedicated individual or multiple concurrent camera viewing) and our IR/Remote Kit provides control over the cameras displayed on WMG TV) If you are interested in viewing live video on a TV, please discuss this with us prior to installation so we can make certain to provide you with the correct hardware and wiring/installation guidance. If you are planning to wall-mount a TV, please be sure to have an electrical outlet installed behind the TV installation location so there will not be any exposed wiring. WatchMeGrow does not provide TVs or TV wall-mounts.
3. Installation & Wiring Estimates: Installation and wiring are optional. You are welcome to provide your own installation and wiring (we will provide our specifications, instructions and remote assistance). Please note that our installation and wiring figures are estimates based on a competitive national rate that we have negotiated with our installers for a standard single-building childcare center with standard height ceilings (8’–10’) with ceiling access. In most cases we can complete projects at our estimated rates, however, your installation and wiring figures will not be confirmed until we visit your building. If your building is not typical (if it has high ceilings, hard lid ceilings with no access, multiple buildings or some other unique feature), please let us know immediately as it may be necessary for us to adjust our installation and/or wiring figures. We will be happy to schedule one of our installers to complete a site inspection and provide you with a free wiring and installation quote at your convenience.
4. Wiring: After your camera & hardware locations have been approved and your agreement signed, WatchMeGrow will prepare your wiring specifications. If you are building or remodeling, wiring should occur during the electrical rough-in phase of your build-out. Wiring can be added to your WatchMeGrow System cost and WatchMeGrow will manage the wiring project on your behalf upon request. WatchMeGrow HIGHLY recommends using WatchMeGrow’s integrator to complete BOTH wiring and hardware installation. If wiring is not being completed by WatchMeGrow, Center must follow WatchMeGrow’s wiring specification. Center will be responsible for any costs incurred if it is necessary to correct wiring work not completed to WatchMeGrow’s specification.
5. Internet: WatchMeGrow cannot be activated for viewing, onsite and/or remote access unless your Internet connection is operational. Please order your Internet service and provide us with your ISP contact information AS SOON AS POSSIBLE (this is particularly important for new construction). WatchMeGrow is not responsible for any ISP or Internet connectivity costs. WatchMeGrow recommends selecting the fastest Internet product available that works for your budget. Center will be responsible for any return trips necessary to configure WatchMeGrow hardware that is delayed by Internet installation.
6. Payment: Center shall pay all installation fees in accordance with this Agreement and the applicable Order executed between the parties.
7. Installation: Center will work closely with WatchMeGrow and Center’s contractor, if applicable, to select an appropriate Installation date. If you are building a new center, WatchMeGrow will likely be one of the last vendors on your project and we will make every attempt to complete your installation at least 48 hours prior to Center’s opening. For new construction, our preferred and recommended installation timing is after you have obtained your C.O. (Certification of Occupancy), after furniture installation, after the Internet is operational and prior to your opening date. Center will be responsible for any additional charges necessary to complete the installation if the building is not ready at the selected Installation date. Additional installation timing requirements that may impact completion of installation: wiring is 100% complete per the WatchMeGrow provided wiring specifications, the ceiling grid and tiles are installed, power, lighting and heating are fully functional and the facility is secure (there are locks on the doors).
8. Center Installation Contact. An authorized person who can make decisions on behalf of Center must be at the center and/or available to assist the WatchMeGrow installer during installation. All installation work this individual approves will be considered final.
9. Shipping: WatchMeGrow will begin shipping your hardware approximately ten days prior to your installation date. Hardware may or may not be shipped to the Center. Upon arrival, Center assumes sole responsibility for all hardware. Hardware must be stored in a secure location and made accessible on the Installation date. All hardware will ship via ground delivery unless otherwise requested and approved by WatchMeGrow.
10. WatchMeGrow Onboarding: After the hardware has been installed, a WatchMeGrow Customer Support Representative will contact you to schedule your onboarding during which we will provide training and answer any questions that you may have.
a. My Account: The MyAccount section within “Admin Tools” allows you to do things like update your account information.
b. Settings. The “Billing” resources under “Settings” allow users to access billing information and pay pills.
b. Family Accounts / Sign-Ups: As soon as your main phone number has been added to our database, your families can create their WatchMeGrow accounts by going to www.watchmegrow.com by clicking the “Sign Up” link. Note: accounts will not be activated until the cameras have been named and you have authorized installation as “completed”.
c. New Account Authorization: We recommend that each family have one primary account holder (typically mom or dad). This person can then add additional family members (like grandma and grandpa / optional). Per our terms and conditions, users cannot share usernames and passwords. Each individual family member user will have a unique username and password. Upon receiving a signup request, the primary account can be authorized in one of two ways:
- Online by Center: via your WatchMeGrow Admin Tools
- Call from WatchMeGrow: via phone call from WatchMeGrow seeking authorization
Additional Important Items
11. Change Orders: Any changes to the hardware or hardware location will require a Change Order and may be subject to additional Charges and Payments at prevailing rates. Center agrees to pay for any and all additional charges or expenses for services and materials not included in the Agreement that are required to complete Installation, including without limitation, any charges associated with or resulting from the conditions defined herein or any deviations from the Camera Plan.
12. PC / Networking: WatchMeGrow does not provide PC configuration or setup for any non-WatchMeGrow PCs or networks. WatchMeGrow HIGHLY recommends Center installs a firewall router for their non-WMG PCs and utilizes the services of a professional PC networking technician. If you already have a networking technician, please advise their contact information.
13. Non-WatchMeGrow Hardware: WatchMeGrow is not responsible for any non-WatchMeGrow hardware. Center will be responsible for any additional labor required to connect non-WatchMeGrow hardware to the WatchMeGrow system unless otherwise defined in your WatchMeGrow agreement. If you have any existing camera system hardware that requires servicing, please let WatchMeGrow prior to your installation date. If applicable, Center is responsible for maintaining any cameras or camera system hardware not provided by WatchMeGrow that is part of the camera system.
14. Wall-Mounted Hardware: Center agrees that wall-mounted hardware locations are selected at Center’s request and only with Center’s approval. In such cases, WatchMeGrow will attempt to install hardware to a stud. If a stud is not available, WatchMeGrow may use lag or other special hardware designed for mounting when a stud is not available. If WatchMeGrow is not confident that hardware can be wall mounted safely, Center will be responsible for making necessary revisions to allow proper wall mounting or assume responsibility for mounting hardware.