​ARTICLE 1 Services (continued)

1. 2 Modification of Services; Change Orders. The Parties acknowledge and agree that during the term of the Agreement the Services may be modified and/or expanded from time to time by the Parties. No changes to the Services will be authorized by Company, and Company shall have no obligation to perform any additional or modified Services, until changes have been agreed to in writing.

2. 1.2 No Exclusivity. Company may represent, perform services for, and contract with other additional clients, persons, or companies as Company, in its sole discretion, sees fit, provided those services do not pose a direct conflict of interest with the services performed for the Client.

3. 1.3 Compliance with Laws; Permits and Licenses. Company agrees, at its own expense, to operate in full compliance with all governmental laws, regulations and requirements applicable to the duties conducted hereunder. It shall be the responsibility of the Client to pay for any necessary licenses, permits, insurance and approvals as may be necessary for the performance of the Services under this Agreement, unless otherwise specified in writing and agreed to by the Company.

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ARTICLE VII. Warranty. The Services to be performed under this Agreement consist of providing childcare referral services. Company does not warrant or guarantee the results or outcomes of any referral, including whether a placement occurs or whether any referred childcare provider meets the needs or preferences of the family. Company’s responsibility is limited to providing accurate, up‑to‑date referral information based on the details supplied by the Client and participating childcare providers. Company warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner consistent with generally accepted industry standards. Company shall comply with all applicable international, federal, state, county, and local statutes, ordinances, regulations, and laws in connection with its performance of the Services.

 

LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION III. IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. COMPANY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE, OR AGAINST INFRINGEMENT. COMPANY SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO THE CLIENT BY THE COMPANY DURING THE TERM OF THIS AGREEMENT, CLIENT’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.

 

ARTICLE VIII. CONFIDENTIAL INFORMATION.

Each Party (the “Disclosing Party”) may share confidential, non‑public information with the other Party (the “Receiving Party”) as part of this Agreement. “Confidential Information” includes:

1. Information about a Party’s business, operations, services, or products, in any form.

2. The terms of this Agreement and any related discussions or negotiations.

3. Information observed during visits to a Party’s facilities.

4. Any other non‑public information shared under this Agreement.

All Confidential Information remains the property of the Disclosing Party. Company’s information regarding the development, improvement, or use of its products is not subject to limitation or restriction.

 

8.2 Referral Data (Families)

Company may collect sensitive information from families for the purpose of providing referral services.

• Company will not disclose any personally identifiable or sensitive family information to Client without the explicit consent of the family.

• Client will not receive personally identifiable referral information from Company; families will contact Client directly.

 

8.3 Client Data (Program Information)

Company may share Client’s publicly provided program information (e.g., location, services, openings, fees) with prospective families.

• Client is responsible for ensuring that its publicly shared information is accurate.

• Client is responsible for obtaining any necessary consents related to public disclosure of such information.

 

8.4 Use and Protection of Confidential Information

The Receiving Party must:

• Keep Confidential Information strictly confidential.

• Share it only with personnel or contractors who need it for purposes of this Agreement.

• Protect it with at least the same level of care it uses for its own confidential information, and no less than reasonable care.

• Use Confidential Information only to perform obligations under this Agreement and not for any other purpose without written permission from the Disclosing Party.

The Receiving Party is responsible for any misuse of Confidential Information by its personnel or contractors. The Receiving Party may not reverse‑engineer, disassemble, or decompile any Confidential Information.

 

8.5 Exceptions

Confidential Information does not include information that:

1. Was already lawfully in the Receiving Party’s possession before disclosure.

2. Becomes public through no fault of the Receiving Party.

3. Is developed independently without using the Confidential Information.

4. Is received from a third party who is free to disclose it.

5. Is released with the Disclosing Party’s written consent.

 

8.6Required Disclosures

If the Receiving Party is legally required to disclose Confidential Information, it must (unless prohibited by law) promptly notify the Disclosing Party and provide reasonable assistance in seeking protective measures. If disclosure is still required, the Receiving Party will disclose only what legal counsel advises is necessary.

 

8.7Unauthorized Use or Disclosure

If the Receiving Party learns that someone has used or shared the Confidential Information without permission, they must tell the Disclosing Party right away. They also need to take reasonable steps to reduce any harm and stop any further misuse. Because improper use or disclosure of Confidential Information can cause serious damage that money can’t fix, the Disclosing Party has the right to ask a court for an immediate order to stop the misuse. The Disclosing Party can do this without having to post a bond.

 

8.8 Return or Destruction; Survival

Upon request or within 15 days after termination of this Agreement, the Receiving Party must return or destroy all Confidential Information (at the Disclosing Party’s discretion). Confidentiality obligations continue for two years after the end of the Agreement.

 

ARTICLE IX. Indemnification.

Each Party (the "Indemnifying Party") agrees to indemnify, defend and hold the other Party and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses and costs, including attorney's fees and court costs, arising out of the Indemnifying Party's (i) gross negligence or willful misconduct or (ii) its material breach of any of the terms of this Agreement. The Indemnifying Party's liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The Party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.

 

SECTION X. STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES' INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

 

ARTICLE X. LIMITATION OF LIABILITY; ACTIONS.

EXCEPT FOR THE PARTIES’ CONFIDENTIALITY OBLIGATIONS UNDER SECTION V. OF THIS AGREEMENT AND INDEMNIFICATION OBLIGATIONS UNDER SECTION VI. OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUBJECT TO THE CLIENT’S OBLIGATION TO PAY THE FEES TO THE COMPANY, EACH PARTY'S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CLIENT TO THE COMPANY UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.

NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.