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Phone: (716) 261-9889
1. Purpose. This Billing Services Agreement (“Billing Agreement”) covers standards for the provision of billing, collection and related management services specified herein by Kangarootime to Customer.
2. Services. Customer hereby appoints Kangarootime as its provider of an online software solution to collect payment for Customer’s charges for all childcare services rendered by Customer according to Customer’s center fee schedule through automating the issuance of statements and processing payments from Customer’s clients (“Billing Services”).
3. Duties of Customer. Upon commencement of this Billing Agreement, Customer shall provide Kangarootime with its billing plans, policies/procedures, including, but not limited to, Customer information, third-party vendors, parent and student demographic and personal information, necessary for Kangarootime to carry out its duties under this Billing Agreement (“Customer Data”). The Customer is responsible for gathering accurate family contact (email and cell phone) information. Kangarootime is not liable for any parents not willing to participate.
4. Terms and Termination. The term of this Billing Agreement shall commence on the Effective Date and shall continue as set forth on the Order Form (“Initial Term”). After the Initial Term, this Billing Agreement will automatically renew for subsequent twelve (12) month terms unless Kangarootime receives written notice ninety (90) days prior to the expiration of the current term. The Fees set forth in the applicable Order Form may be subject to increase upon any autorenewal. In the event that a party breaches any material provision of this Billing Agreement and fails to cure such breach within fifteen (15) days after written notice thereof (which notice reasonably details the alleged breach), the non-breaching party may terminate the Billing Agreement (including the Order Form and the End User License Agreement) immediately by written notice to the other party. In the event that a party (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors or (w) ceases to do business in the ordinary course, the other party may terminate this Billing Agreement immediately by notice in writing. All notices required by this Section 4 shall be in accordance with the notice requirements. Customer acknowledges that in the event of a termination for any reason: (x) the rights granted by Kangarootime to Customer under this Billing Agreement will cease immediately; (y) Kangarootime does not retain and shall not be responsible for any damage to or loss of Customer Data or other data; and (z) Customer shall not be entitled to a refund of any prepaid fees. All orders are non-refundable, including in cases where the Customer has cancelled an order and/or has not used the Billing Services.
5. Payment and Taxes. All fees due for the Billing Services are set forth in the applicable Order Form. All fees referred to in this Billing Agreement are in United States dollars and do not include any duties, taxes, and handling fees. Customer shall pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) levied on the Billing Agreement, except taxes based on Kangarootime’s income. Kangarootime reserves the right to cease providing the Billing Services for any accounts for which any payment of fees is due and unpaid, provided, however, that Kangarootime provides Customer a delinquency notice of such nonpayment and at least thirty (30) days have passed since the transmission of such delinquency notice without full payment of the unpaid fees by Customer. Any amount payable under this Billing Agreement that is not paid within forty-five (45) days after its invoice date will accrue interest at the lesser of 1.5% per month or at the maximum lesser rate allowed by law. Customer also shall pay to Kangarootime all reasonable expenses incurred by Kangarootime in connection with exercising any of its rights under the Billing Agreement or applicable law with respect to the collection of any payments due Kangarootime (excluding with respect to amounts reasonably disputed by Customer in good faith), including reasonable attorneys’ fees, court costs, and collection agency fees.
6. Confidentiality. Each party shall maintain the confidentiality of the other’s Confidential Information (as defined below) and not to use such Confidential Information except in performing hereunder. Except as required by law or to carry out the purposes of this Billing Agreement, Kangarootime shall not disclose to any third party any Customer Data. Except as expressly authorized herein, the receiving party agrees to: (i) treat all Confidential Information of the disclosing party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (ii) disclose the disclosing party’s Confidential Information only to those employees, contractors or professional advisors of the receiving party who have a need to know such information for the purposes of this Billing Agreement (collectively, “Representatives”), provided that any Representative shall be subject to a binding written agreement with respect to such Confidential Information at least as restrictive as the terms and conditions of this Billing Agreement, and the receiving Party shall remain solely liable for any non-compliance of the Representative with the terms and conditions of this Billing Agreement. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving party; (b) was rightfully in the receiving party’s possession on a non-confidential basis independent of its relationship with the disclosing party prior to the first disclosure by the disclosing party to the receiving party as evidenced by the receiving party’s then-existing written records; (c) has been or is developed by or become known to the receiving party without access to any of the disclosing party’s Confidential Information and outside the scope of any agreement with disclosing party with the receiving party having the burden of proof to demonstrate independent creation; (d) has been obtained rightfully from third parties not bound by an obligation of confidentiality. “Confidential Information” means any nonpublic information (written, oral or electronic) disclosed by one party to the other party and shall be deemed to include the following information of the respective parties, without limitation: (i) the terms and conditions of the Billing Agreement; (ii) customer lists, the names of customer contacts, business plans, technical data, product ideas, personnel, contracts and financial information; (iii) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (iv) information about costs, profits, markets and sales; (v) plans for future development and new product concepts; and (vi) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments. The parties agree that a material breach of this Billing Agreement adversely affecting the Confidential Information of either party may cause irreparable injury to such party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a pond) in addition to any remedies it may have hereunder or at law.
7. Warranties. Kangarootime shall provide the Billing Services hereunder, and shall maintain and use all Customer Confidential Information obtained in connection with this Billing Agreement, in compliance at all times with all federal, state and local statutes and regulations. EXCEPT AS SPECIFICALLY SET FORTH IN THE BILLING AGREEMENT, KANGAROOTIME THE BILLING SERVICES ARE PROVIDED “AS IS” AND KANGAROOTIME DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
8. Limitation on Liability. KANGAROOTIME’S LIABILITY TO CUSTOMER, IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THE SUBJECT MATTER OF THIS BILLING AGREEMENT SHALL BE LIMITED TO THOSE ACTUAL AND DIRECT DAMAGES WHICH ARE REASONABLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER WITH RESPECT TO THE BILLING SERVICES GIVING RISE TO THE LIABILITY OVER THE MONTHS IN WHICH LIABILITY OCCURRED NOT TO EXCEED TWELVE (12) MONTHS. KANGAROOTIME WILL NOT BE LIABLE FOR: SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA, LOST PROFITS, LOSS OF GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS BILLING AGREEMENT, THE APPLICATIONS OR
SERVICES, EVEN IF KANGAROOTIME HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. CUSTOMER MAY HAVE RIGHTS UNDER CERTAIN LAWS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. TO THE EXTENT THAT SUCH LAWS APPLY, THESE EXCLUSIONS AND/OR LIMITATIONS DO NOT APPLY TO THE CUSTOMER.
◦ Both parties agree to notify the other immediately in the event of any investigation, suit or action brought against it with respect to billing or collection services provided under this Billing Agreement.
◦ Any notice required or permitted hereunder shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the U.S. Postal Service as certified mail, return receipt requested and postage prepaid, (iii) on the first day following delivery to a recognized overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested, (iv) upon confirmation of receipt by the party to receive such notice, of a fax sent to the fax number of such party, or (v) upon confirmation of receipt by the party to receive such notice, of an e-mail sent to the e-mail address of such party. Any such notice shall be delivered or sent to a party at its address, fax number or e-mail address as set forth in the applicable Order Form, or to such other address or fax number as may be designated by a party in a notice given to the other from time to time in accordance with the terms of this paragraph.
◦ This Billing Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, excluding its principles of conflicts of law. The state and federal courts of Erie County, New York will have exclusive jurisdiction over any disputes under this Billing Agreement. In the event a dispute arises between the parties relating to this Billing Agreement, the parties will for a period of thirty (30) days from notice of the dispute, prior to the filing of a lawsuit, attempt in good faith to negotiate a resolution of the dispute. If the dispute remains unresolved after such period, the dispute shall be submitted to confidential arbitration in Buffalo, NY. Arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
◦ Customer’s rights may not be transferred, assigned, or sublicensed by Customer without the prior written consent of Kangarootime. Any action or conduct in violation of the foregoing shall be void and without effect. In the event of such a transfer, assignment, or sublicensing, Customer shall not be relieved of its obligations hereunder, and the successor must assume the terms and conditions of this Billing Agreement in a manner acceptable to Kangarootime. In the event of a conflict between the Order Form, the Billing Services Agreement and the End User License Agreement, the order of precedence shall be: (a) the Order Form; (b) the Billing Services Agreement; (c) the Customer License Agreement; and (d) the End User License Agreement.
◦ This Billing Agreement contains the entire agreement of the parties relative to the Billing Services to be provided to Customer and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied in the Billing Agreement will be of any force or effect. This Billing Agreement specifically supersedes any prior written or oral agreements between the parties relating to the provisions of the Billing Services. No modification, amendment, waiver, termination, or discharge of this Billing Agreement or any provisions hereof shall be binding upon either party unless confirmed by a written instrument signed by the chief executive officer of Kangarootime and an authorized representative of Customer. Signatures sent by electronic means (facsimile or scanned and sent via email) shall be deemed original signatures.
. We may seek injunctive or other equitable relief necessary to protect Our interests and right including, without limitation, actions necessary to enjoin the release of Our Confidential Information. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to
create an employment or agency relationship or a partnership between a party and the other party or the other party’s employees or agents. Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security, if applicable), workers compensation, and all other employment benefits. The provisions of this Agreement that by their nature would survive its termination will survive indefinitely.