(Last updated Sept 30, 2019 9/30/2019)
Part I – Definitions, Agreement to be Bound.
References to the “Booking Services” mean those appointment-scheduling services made available by us through the Booksy Application.
References to the “Booksy Application” mean any mobile, web, or voice software application related to the Services designed, developed, and/or made available by us and available through the iTunes and Google Play stores as well as other third-party services, including but not limited to Amazon Alexa and Google Home.
References to the “Booksy Site” mean the Web site bearing the URL http://www.booksy.com and all affiliated websites owned and operated by Booksy, our subsidiaries, and related companies.
References to a “Customer” mean any person or entity who uses the Booksy Application Booksy Site, or a Third-Party Platform as defined in Section 3.8 to schedule an appointment, manage appointments, browse health-, beauty- and wellness-related content and services, and/or pay for services rendered, whether said individual registers directly for the use of the Booksy Application or is added by an SMB through whom Customer obtains services.
References to “Dispute” mean any claim, conflict, controversy, or disagreement between the Parties arising out of, or related in any way to, these Terms (or any Terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract, or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation, or enforcement of these Terms or any terms contemplated by the Terms.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching party would wish to immediately terminate these Terms because of that breach.
References to the “Services” mean, collectively, any and all services offered by us, including but not limited to (1) the Booksy Site, (2) the Booksy Application, (3) the Payment Services, and (4) any other services or features made available by Booksy through the Booksy Site, Payment Services (as set forth in Section 4.5 hereof,) or Booksy Application.
References to a “SMB” mean a small or medium business and seller of goods, services, or products who use the Services to allow Customers to book, manage, view, and cancel appointments.
References to “us,” “we,” “our,” and/or “Booksy,” refer to Booksy, Inc., a Delaware corporation with its principal operating office in Illinois at 171 N. Aberdeen Street, #400, Chicago, Illinois 60607, and all its designated agents, employees, and subsidiaries within the United States of America for those customers based and/or residing in North and South America and Australia. For customers based and/or residing in the European Union, the terms "Booksy" and "we", “us” and/or “our” refer to Booksy International Sp. z.o.o., Łucka 2/4/6 U4, 00-842 Warsaw, Poland, and all its designated agents, employees, and subsidiaries within the European Union. For the avoidance of doubt, the entity to which you provide implied consent through your use of the Services depends on your place of residence and location of use of such Services.
References to “you,” and/or “User” mean the User of the Services, whether as a SMB or Customer.
1.2. Agreement to be Bound.
Part II – General Provisions.
2.1. About Us; Booksy not Vendor; No Endorsement.
At its core, Booksy acts as a software as a service to allow its Users to book, manage, view, and cancel appointments. In addition, the Booksy platform and all related Booksy applications allow Users to browse, view, and review content and potential service providers for health, wellness and beauty related services. Booksy does NOT have control over (1) the quality, safety, morality or legality of any aspect of any Services offered by SMBs using our Services, (2) the truth or accuracy of the listings or directory information provided to us by SMBs, (3) the timeliness or accuracy of any SMB appointment calendar, (4) the ability of SMBs to provide Services booked, (5) the identity of any SMB or Customer, or (6) the ability of Customers topay for Services. (7) We do not and cannot ensure that a SMB or Customer will actually complete a transaction. If you rely on any of the information provided by or on the Services, you do so solely at your own risk.
You acknowledge and agree that we do not sell or purchase, offer to sell or purchase, invite to sell or purchase, or make or solicit any offers. IN ALL INSTANCES EXCEPT WHERE NOTED, ALL SALES AND SERVICES ARE ADVERTISED, SOLICITED, OFFERED, ACCEPTED, MADE, AND DELIVERED BY SMBS WITH WHOM A CUSTOMER DIRECTLY CONTRACTS. AT NO TIME WILL A CUSTOMER/MERCHANT RELATIONSHIP EXIST BETWEEN US EXCEPT AS EXPLICITLY NOTED. In all instances, any solicitation, invitation, offer,advertisement or communication is void where prohibited by law.
2.2. Accuracy, Completeness, and Timeliness of Information.
We are not responsible if information made available on the Services is not accurate, complete, or current, including but not limited to the corporate information of a SMB, calendar availability, and bookings made.
2.3. Errors in the Services.
If you encounter any error in the service, let us know at email@example.com. We do not warrant that any errors in the Services will be corrected.
Booksy may update or revise this Agreement (including any Booksy Policies) from time to time at its sole discretion and without limitation upon notice of the same via posting to the Services and/or the emailing of a notice to our registered Users. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account or SMB Account (as defined below). Except as otherwise expressly stated by Booksy, any use of the Services (e.g., the use of the Booking Services or the Payment Services) is subject to the version of this Agreement in effect at the time of use.
2.5. Modifications and Changes to the Services.
We may modify, add to, suspend, or delete any aspect of the Services, in whole or in part, at our sole discretion at any time, with such modifications, additions, or deletions being immediately effective. Such modifications, additions, or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use. If you do not agree to such modifications to the Services, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account. or SMB Account (as defined below). Except as otherwise expressly stated by Booksy, any use of the Services (e.g., the use of the Booking Services or the Payment Services) is subject to the version of this Agreement in effect at the time of use.
2.6. Access to Web site or the Services.
Though we try to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Services will be at all times available.
2.7. Right of Refusal, Limitation, Discontinuation, and Termination.
We reserve the right to refuse to provide access to the Services for any reason at any time in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit or cancel an Account or a SMB Account (as defined below) for any reason whatsoever. In the event that we make a change to or cancel an Account or a SMB Account (as defined below,) we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your Account or SMB Account (as defined below) was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account or SMB Account (as defined below) termination.
2.8. Prohibited Uses of the Services.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Services: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Services; (c) to violate any international or governmental regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Services; (l) take any action that imposes or may impose (in Booksy’s sole determination) an unreasonable or disproportionately large load on the Services or Booksy’s infrastructure; (m) rent, lease, copy, provide access to or sublicense any portion of the Services or Booksy Materials (as defined below) to a third party; (n) use any portion of the Services or Booksy Materials (as defined below) to provide, or incorporate any portion of the Services or Booksy Materials (as defined below) into, any product or service provided to a third party; (o) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Booksy); (p) modify any Services or Booksy Materials (as defined below) or create any derivative product from any of the foregoing; (q) remove or obscure any proprietary or other notices contained in the Services or Booksy Materials (as defined below); or (r) publicly disseminate information regarding the performance of the Services or Booksy Materials (as defined below)or access or use the Services or Booksy Materials (as defined below)for competitive analysis or benchmarking purposes. We reserve the right to terminate your use of the Services for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
2.9. Communications Systems and Authorization to Contact You; Recording Calls; Analyzing Your Messages and other Content.
Booksy may, without further notice or warning and in its sole discretion, monitor orrecord telephone conversations you or anyone acting on your behalf has with Booksy orits agents for quality control and training purposes, or for its own protection.
Booksy automated systems scan and analyze the contents of every message sent throughits messages platform, including messages between users, to detect and preventfraudulent activity or violations of Booksy’s User Agreement, including the incorporatedterms, notices, rules, and policies. This scanning and analysis may occur before, during,or after the message is sent, or while in storage, and may result in your message beingdelayed or withheld. Booksy may store message contents, including to conduct thisscanning and analysis.
2.10. Privacy of Others; Marketing.
If Booksy provides you with information about another User, you agree that you will usethe information only for the purposes that it is provided to you. You may not disclose,sell, rent, or distribute a User's information to a third party for purposes unrelated to theServices. Additionally, you may not use User information for marketing purposes, viaelectronic or other means, unless you obtain the consent of the specific User to do so.
2.11. Government End Users.
The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, the Code ofFederal Regulations relating to the use of “commercial computer software” and“commercial computer software documentation” as such terms are used in 48 C.F.R.12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4,all U.S. Government end users acquire any Booksy Application with only those rights setforth therein. If you are a Government End User, please consult first with your relevantlegal department prior to use to confirm your use is compliant with the standards andpolicies under the Code of Federal Regulations.
2.12. Export Control.
You may not use, export, or re-export any Booksy Application or other aspects of theServices (or any copy or adaptation of the foregoing) in violation of applicable law,including, without limitation, United States and foreign export laws and regulations. Yourepresent and warrant that you are not located in a country that is subject to a U.S.Government embargo or that has been designated by the U.S. Government as a “terroristsupporting” country and that you are not listed on any U.S. Government list of prohibitedor restricted parties.
2.13. Fraudulent Actions of Users.
Booksy is not liable for any losses relating to chargebacks, fraudulent charges, or otheractions by any User that are deceptive, fraudulent, or otherwise invalid ("FraudulentActions"). By using the Services, you hereby release Booksy from any liability arisingfrom Fraudulent Actions. You will also use best efforts to promptly notify us of anyFraudulent Actions which may affect the Services. Booksy reserves the right, in its solediscretion, to terminate the account of any User that engages in, or enables any other Userto engage in, Fraudulent Actions.
Part III – Customer Accounts.
3.1. Online Accounts.
3.2. Transfer Prohibited.
You agree that you shall not sell, trade, or transfer your Account to any other person or entity.
3.3. Account Guidelines.
The Services may contain the ability to communicate with other Users on one or moreprofiles, booking forms, platforms, comments sections, discussion forums, Web sites,landing pages, social media outlets, sales channels, and/or other interactive features,(hereinafter "Interactive Areas,”) in which Users and third parties may communicate. Byparticipating in Interactive Areas, you agree and acknowledge that you:
- Shall not upload, distribute, or otherwise publish to the Services any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material; and
- Shall not threaten or verbally abuse other Users, use defamatory language, ordeliberately disrupt discussions with repetitive messages, meaningless messagesor "spam”; and
- Shall not to use language that abuses or discriminates on the basis of race,religion, nationality, gender, sexual preference, age, region, disability, etc. Hatespeech of any kind is grounds for immediate and permanent suspension of use ofthe Services; and
- Shall not use the Interactive Areas to distribute or otherwise publish any materialcontaining any solicitation of funds, advertising or solicitation for goods orservices except for the sale of goods or services in the scope envisioned by theexpress purpose of the Services; and
- Shall not upload, post or otherwise transmit any content that violates any law orengage in activity that would constitute a criminal offense or give rise to civilliability; and
- Shall not post unauthorized commercial communications (such as spam); and
- Shall not upload, post, or otherwise transmit any content that advocates orprovides instruction on illegal activity or discuss illegal activities with the intentto commit them; and
- Shall not upload, post, or otherwise transmit content that does not generallypertain to the designated topic or theme of any Interactive Area; and
- Shall not impersonate any person or entity, including, but not limited to, any ofour employees, or falsely state or otherwise misrepresent your affiliation with anyperson or entity; and
- Shall not interfere with any other User's right to privacy, including by harvestingor collecting personally-identifiable information about other Users of ourInteractive Areas or posting private information about a third party; and
- Shall not engage in unlawful multi-level marketing, such as a pyramid scheme;and
- Shall not upload, post or otherwise transmit any content, software or othermaterials which contain a virus or other harmful or disruptive component; and
- Shall not interfere with or disrupt the Services or the Interactive Areas or theservers or networks connected to the same, or disobey any requirements,procedures, policies, or regulations of networks connected to the Services and/orthe Interactive Areas; and
Users agree and acknowledge that any profile they create may be edited, removed,modified, published, transmitted, and displayed by us, and they waive any rights theymay have in having the material altered or changed in a manner not agreeable to them.
3.4. Rights in Submissions.
Should you submit, display, publish or otherwise post any content to an Interactive Area,(hereinafter “Submissions,”) you agree to grant to us and our partners and affiliates alimited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use,modify, publicly perform, publicly display, reproduce, and distribute such Submissions inany and all media now known or hereinafter developed for hosting, indexing, caching,distributing, tagging, marketing, and for all other lawful purposes without therequirement to make payment to or seek permission from you or to any third party.
You represent and warrant that you own or have a valid license to use any and allSubmissions and otherwise have the right to grant the license set forth herein, and thedisplaying, publishing or posting of any Submissions does not and will not violate theprivacy rights, publicity rights, copyrights, trademark rights, patents, contract rights orany other intellectual property rights or other rights of any person or entity.
3.5. Right to Monitor.
We shall have the right to monitor your Account in our sole and exclusive discretion.
3.6. Verification of Users.
Users wishing to participate in the Services may be asked to provide a valid mobilephone number through the Booksy Application and verify such number as instructed byus. To verify your mobile phone number, we will send you a code via text message to themobile phone number you provided, and you must enter that code as instructed in theBooksy Application. If you change your mobile phone number, you must promptlyprovide and verify your new mobile phone number. When you provide your mobilephone number, you expressly consent to receive direct dial calls, autodialed andprerecorded message calls, and text messages at that number. Users wishing to participatein the Services may also be required to verify their identities, especially in the case ofPayment Services. This may include but is not limited to providing proof of identity(such as via a passport or other photo-bearing piece of identification) and residence (suchas via a current utility bill.) Booksy does not bear any responsibility and cannot be heldliable for the verification or non-verification of a User’s identity.
3.7. Account Settings.
Part IV – Terms of Sale for Booking Services, Payment Services.
4.1. Appointment Booking.
Booksy provides the Booking Services to Users for the purpose of assisting Customers indiscovering and booking appointments with variety of participating SMBs and ofassisting SMBs in more efficiently managing their calendars and increasing theircustomer base. In response to a Customer’s online request for a SMB appointmentthrough the Booksy Site or Booksy Application, Booksy directly contacts the SMB’scomputerized database of appointments. The availability of appointments is determinedat the time of User’s query and is provided by the SMB. Users understand and agree thatBooksy does not independently verify the availability of any SMB and cannot be heldliable for errors in a SMB’s calendar, such as double-booking or bookings that are nothonoured by the SMB. Once an appointment is made by a Customer through the BooksySite or Booksy Application, Booksy will provide confirmation of the appointment to boththe Customer and SMB by email to the email address provided by said User uponregistration. By using the Booking Services, Users agree to receive appointmentconfirmations and reminders by email, SMS, push notifications, and/or any chatbotrelated or voice-assisted technology with which Booksy may engage. Booksy shall not beheld liable in the event an appointment confirmation or reminder is not sent to or receivedby a User.
4.2. Appointment No-Show & Cancellation Policy.
Customers who cancel or fail to show up for multiple bookings may have their Accountsterminated, at the sole discretion of Booksy, in the event that such account activity isdetrimental to orderly Booking Services with SMBs and members of the Booksycommunity.
4.3. Usage Guidelines.
User agrees to use the Booking Services only to book appointments at SMBs and thenhonor those appointments by arriving at SMBs on time and paying for the servicesbooked and provided. Resale or attempted resale of appointments is prohibited and isgrounds for, among other things, cancellation of your appointments or termination ofyour access to the Services.
4.4. Booksy Payment Services, Generally.
Booksy may offer third-party payment services (the “Payment Services”) in order toallow Customers to pay bills at participating SMBs through the Booksy Application.Specifically, Booksy collects and processes payments on behalf of SMB through AdyenN.V., a recognized professional payment gateway provider. In order to use the PaymentServices at a participating SMB, Customers must: (1) install the Booksy Application on acompatible mobile device; (2) make a reservation for the SMB through the BookingServices; (3) provide valid payment information through the Booksy Application asfurther described below; and (4) have an Account in good standing. There is no fee fromBooksy to Customer to use the Payment Services; however, Customer’s mobile carrier’sstandard text message and data charges may apply; you are responsible for any feescharged by your mobile carrier in connection with your use of the Payment Services andBooksy Application.
4.5. Sale Prices
The prices and the terms of payment for SMB services are displayed at the time ofbooking via the Booksy Application; however, SMBs may modify or change these fees atany time, in their sole discretion. The Booksy Site and Booksy Application support bothincluded and excluded tax systems. In the former, the prices presented are the final pricesincluding all sales taxes, and, in the latter, such taxes will be added to the final price afterthe service is rendered. The decision as to which system should be used is up to the SMB.
4.6. Payment Card Information.
To confirm that the payment card information you have provided is accurate, we mayplace a temporary $1.00 authorization hold on your debit or credit card at the time youprovide your payment card information through the Booksy Application. After we verifythat your payment card information is accurate, usually within a few days, the $1.00 holdwill be removed. In no event will your payment card actually be charged for this $1.00authorization.
By providing debit or credit card account information through the Booksy Application,you represent, warrant, and covenant that: (1) you are legally authorized to provide suchinformation to us; (2) you are legally authorized to perform payments from the debit or credit card account(s); and (3) such action does not violate the terms and conditionsapplicable to your use of such debit or credit card account(s) or applicable law. When youauthorize a payment using a debit or credit card account via the Booksy Application, yourepresent, warrant, and covenant that there are sufficient funds or credit available tocomplete a payment using the debit or credit card account. By using Booking Services,you acknowledge and accept the binding agreement to bear full financial responsibilityfor all Booking Services that you schedule using Booksy or information contained onBooksy.
4.7. Payment Authorization and Settlement.
When you indicate through the Booksy Application that you intend to pay your bill usingthe Payment Services, you authorize Booksy or the payment service provider to chargeyour debit or credit card for the full amount of the services to be rendered and anycancellation fees that you may incur at any time prior to or after the appointment time anddate. You are responsible for timely payment of all amounts owed by you to Booksy andSMBs.
4.8. Receipts and Transaction History.
All the receipts for the transactions connected with the Payment Services are visible inyour Account in the Booksy Application and/or Booksy Site. If you would like anemailed version or a paper receipt, you must request one from the SMB at the time of thetransaction or service.
4.9. Incomplete Payments.
Booksy is not liable for any payments that the Payment Services do not completebecause: (1) your debit or credit card account does not contain sufficient funds tocomplete the transaction or the transaction would exceed the credit limit or overdraftprotection of the debit or credit card account; (2) you have not provided us with correctpayment account information; (3) your debit or credit card has expired; or (4)circumstances beyond our control (such as, but not limited to, power outages,interruptions of cellular service, or any other interference from an outside force) preventthe execution of the transaction. To the extent that any amounts owed cannot be collectedfrom your debit, or credit card account through the Payment Services, you are solelyresponsible for paying the applicable SMB(s) by other means, such as cash, as requiredfor the full value of the services scheduled and/or delivered.
6.1. Unauthorized Business.
In addition to the forgoing prohibited uses, our Mobile Application and the Web site may not be used by a SMB to cause us to sell on his, her, or its behalf any of the following products or services, (hereinafter “Unauthorized Business:”) (1) any illegal activity or goods; (2) drugs and tools intended for the production of drugs; (3) pharmacies or pharmacy referral services; (4) betting, including lottery tickets, sports related gambling, casinos; (5) insurance or other financial merchandise or services; (6) money transfer; (7) independent financial adviser services or securities; (8) pyramid selling or multi-level marketing; (9) counterfeit goods and goods infringing on third party intellectual property rights; (10) adult entertainment oriented products or services; (11) escort or sexual services; (12) sales of firearms, ammunition, or weapons and other devices designed to cause physical injury; (13) internet/mail order/telephone order of age-restricted products (e.g., tobacco, alcohol); (14) hate or harmful products or other products or services invoking or supporting discrimination, violence or terrorism; (15) any other sales of products or services in highly-regulated industries; and (16) illegal software or illegal downloads such as music, films, or games. Violations of this requirement may result in account termination.
6.2. SMB Accounts, Generally.
When registering an SMB Account, you represent that you are authorized to act on behalf of the SMB and must provide true, accurate, current, and complete data about the SMB being registered. Such data may include KYC data, as requested by our payment gateway provider. Be advised that our payment gateway provider may rejected any SMB if it fails the provider’s internal due diligence procedures. For more information, see the terms and conditions of our processor, Adyen N.V., available at https://www.adyen.com.
You also agree to promptly update your SMB account to keep it accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your SMB Account and the information in your SMB Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your SMB Account, whether or not authorized by you. You agree to immediately notify Booksy of any unauthorized use of your SMB Account or any other breach of security related to your use of the Services.
6.3. Registration, Service Fees.
Registration of a SMB Account may or may not be free of charge, depending on the region of the SMB’s business activity or type of services provided, thus, you may have to pay a fee to register your SMB Account (“Registration Fee”). The exact amount of Registration Fee will depend on type and location of your SMB. Booksy reserves the right to change, from time to time and in its full discretion, the locations or types of SMBs which benefit from the reduced or waived Registration Fee.
Registration Fees shall be transferred via acceptable payment methods as set forth by us at the time of registration or as otherwise communicated to the SMB. In addition to the Registration Fee, you agree that a specified fee will be periodically, monthly or semiannually, depending on your arrangement with Booksy, transferred from said acceptable payment method account for placing your offers via Services and maintaining the SMB account (“SMB Subscription Fee”). The first SMB Subscription Fee will be transferred at the moment of registration along with the Registration Fee, if applicable. Booksy reserves the right to waive or reduce your SMB Subscription Fee for a certain period in its sole discretion, such as in the event of a free trial period. After such period, you will be presented with an offer of a certain SMB Subscription Fee and a pertinent amount will be transferred from your account if you agree to its conditions. Booksy reserves the right to block or delete the accounts of SMBs which do not transfer required fees.
6.4. Creation of Account on Third-Party Platform.
6.5. Cancellation of a SMB Account.
Please be advised that cancellation of a SMB Account with Booksy may not cancel or cause to be deleted a SMB account on a Third-Party Platform. To cancel or request to be deleted such accounts, SMBs should contact such Third-Party Platform directly.
6.6. Compliance with all Terms of Sale.
All sales and accepted bookings shall be binding. SMB agrees and acknowledges that he, she, or it, and not us, shall be solely responsible for delivery of any and all purchased services to Customers and that a contract for sale arises at the point where a Customer utilizes the Booking Services to book a service. Every sale shall be subject to the laws applicable, but there shall not be implied any right that is not a legal right and that is not set down in these Terms.
6.7. SMB Warranties; Restrictions.
In addition to the Unauthorized Business and prohibited use of the Services set forth in these Terms, SMB warrants that any and all services (a) are not: illegal, obscene, abusive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to any third party; (b) have not been identified by the U.S. Consumer Products Safety Commission and any other regulations set forth by the countries of SMB and Customer as hazardous to consumers and, therefore, are not services subject to a recall; (c) are not counterfeit; (d) do not offend against the law of any country whose citizens might purchase or receive the services; and (e) do not violate the rules and regulations promulgated by the U.S. Food and Drug Administration (“FDA”). SMB warrants further that he, she, or it owns all copyrights, trademarks and other intellectual property related to any SMB Account information provided to us or that SMB has the permission of the intellectual property rights holder (a) to place the Product(s) into the stream of commerce; (b) to receive the net proceeds of such sales as arise; and (c) to defend the intellectual property in the Product(s). Finally, SMB warrants and represents that he, she, or it has all licenses and authorizations required for performance of these Terms. Upon our request, SMB shall provide us with sufficient documentary evidence of such authorization or waiver. We are not obliged to require such documentary evidence, and the fact that we have not requested such documentary evidence shall not be deemed in any way as a statement as to whether or not such authorization or waiver is required.
Furthermore, it is illegal to use drug paraphernalia slang when referring to Products available for sale via the Web site.
Any and all governmental employees, agencies, and/or agents must identify themselves to us upon their entering the Web site, and when ordering any products from the Web site.
6.8. Listing Description.
By listing services available for booking via the Booking Services, SMB must accurately describe the services it provides and all terms of sale. SMB’s listings may only include text descriptions, and other content relevant to the sale of that service and must be listed in an appropriate category with appropriate tags.
6.9. Maintenance of Calendar
SMB is responsible for the accurate maintenance and updating of its calendar to show current, correct availability for the Booking Services. In no event shall Booksy be held liable for double-bookings or other schedule-related errors.
6.10. Ethical Selling Tactics Required; Communication with Customers.
SMBs shall utilize ethical selling tactics when promoting any and all services including refraining from the making of false and/or misleading statements regarding the services and/or SMB. SMBs expressly agree to conduct themselves at all times in an ethical, moral, and lawful manner. In order to assist with the same, Booksy may from time to time in its sole and exclusive discretion place limits on the types of communications that SMBs may send to Customers, including but not limited to mass targeted marketing campaigns via SMS text, email, or push notification.
In addition to the forgoing, SMBs shall not abuse any communication system made available via the Booksy Application or the Booksy Site, including the use of autoresponders. SMBs understand that such auto-responders may or may not be activated automatically upon registration of a SMB Account, depending on jurisdiction, and can be modified by SMB via its account settings.
6.11. Compliance with Law.
In addition to the other requirements to comply with laws, regulations, and terms set forth herein, SMBs agree to obey any and all local, state, and federal regulations and laws regarding solicitation and sales.
6.12. Freedom of Promotional Methods.
Notwithstanding the forgoing, SMBs shall be free to choose on which social media platforms and through such other mediums and sales channels they promote their services and use of the Services, including the ability to choose his, her, or its own operation means, methods, locations, and hours.
6.13. Right of Refusal.
SMB may refuse to accept a booking made via the Booking Services for any or no reason whatsoever so long as such a refusal does not violate federal, state, or local laws, or any other rule or regulation
6.14. Policies, Terms of Sale Required.
6.15. Processing Fees for SMBs
SMBs who wish to use our Payment Services shall be charged a fee for processing payments according to the current local pricing, (the “Processing Fee.”) For details, contact firstname.lastname@example.org. Such Processing Fee shall be subject to change without notice in our sole and exclusive discretion. Such Service Fee shall not be refundable to SMB, for any reason whatsoever, including in the instance SMB shall have to refund a purchase to a Customer.
6.16. Chargebacks and Revocations.
If a Customer is not the authorized user of the payment method or otherwise contests the transaction, the amount of a transaction may be reversed or charged back provided that the transaction: (a) is disputed, (b) is reversed for any reason by the payment network, Booksy’s payment gateway provider, or the Customer or its financial institution, (c) was not authorized or Booksy has any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of these Terms. For any transaction that results in a chargeback, Booksy will withhold the chargeback amount in a reserve from the amounts payable to SMB. We may recoup the amount of any chargeback and any associated fees and fines assessed by a network or our processor. In addition to the forgoing, be advised that Booksy may charge a chargeback processing fee. If you have pending chargebacks, we may delay payments, and if we reasonably believe that a chargeback is likely with respect to any transaction, we may withhold the amount of the potential chargeback from payments otherwise due to you until such time that: (a) a chargeback is assessed due to a Customer complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which your customer may dispute that the transaction has expired; or (c) we determine that a chargeback on the transaction will not occur. If we are unable to recover funds related to a chargeback for which you are liable, you agree to pay us the full amount of the chargeback immediately upon demand. You agree to pay all costs and expenses, including attorneys’ fees and other legal expenses, incurred by us for the collection of all amounts unpaid by you.
If we believe you might incur, or you are incurring, an excessive amount of chargebacks, we may establish additional conditions governing your account, including (a) establishing new processing fees, (b) creating a reserve in an amount reasonably determined by us to cover anticipated chargebacks and related fees, (c) delaying payouts, or (d) terminating or suspending the Payment Services.
We will assist you, when requested and at your expense, to investigate any of your transactions processed through the Payment Services. To that end, you permit us to share information about a chargeback with the Customer, the Customer’s financial institution, our payment processor, payment networks and your financial institution in order to investigate and/or mediate a chargeback. We will request necessary information from you to contest the chargeback. If the chargeback is contested successfully, we will release corresponding reserved funds to your account. If a chargeback dispute is not resolved in your favor by the network or issuing bank or you choose not to contest the chargeback, we may recover the chargeback amount and any associated fees as described in these terms. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within seven (7) calendar days of our request, may result in an irreversible chargeback.
6.17. Withholding of Funds.
Where we, in our reasonable opinion, are required to do so by law, we reserve the right to withhold funds for services that we reasonably deem suspicious with regard to money laundering, Unauthorized Business, fraud, or other illegal activities or in case of any other chargebacks or revocations.
Once you create your SMB Account, through the secure form you will have the opportunity to designate a deposit account into which you wish to be paid out. Once funds for the Payment Services have been completed and are settled, they shall be available for withdraw. For U.S.-based SMBs, payouts shall automatically be transferred to your deposit account less any fees every business day. For all other SMBs, payouts are generally made to your designated deposit account less any fees within 2-3 business days.
Except as required by law, you shall remain solely and exclusively responsible for retaining permanent records of all transactions processed via your SMB Account Settings.
We are not responsible and accept no liability for any delay of payout. To inquire about a payout schedule for any particular transaction please review your Payment Report or contact Booksy at email@example.com.
In the event your payout account becomes negative, you agree that we have the right to offset any incoming payments against the negative balance. Should you fail to bring your account to positive, we may block you from accepting further payments and institute legal proceedings for collection.
6.19. Responsibility for Accurate Pay Out Information
You agree to provide current, complete, and accurate deposit account information for payout. You agree to promptly update your SMB Account and other information, including your address, email address and bank account information, so that we can complete your transactions and contact you as needed.
Booksy may require the SMB to maintain deposits in an escrow account to act as a provision against chargebacks and refunds. The amount of such deposits will be determined by Booksy.
6.21. Processing Errors.
We will attempt to fix processing errors we discover. If the error resulted in your receipt of fewer funds than you were entitled, we will credit your SMB Account for the difference. If the error results in your receipt of more funds than you were entitled, Booksy will debit the extra funds from your SMB Account or your linked bank account. You shall remit to Booksy the difference within thirty (30) calendar days of demand therefore. We will only correct transactions that you process incorrectly if you notify us of such an error. Your failure to notify us of a processing error within thirty (30) calendar days of when it first appears on your electronic transaction history may be deemed a waiver of any right to amounts owed to you
By accepting card transactions through the Payment Services, you agree to process returns of, and provide refunds and adjustments for your goods or services in accordance with these Terms. You are obliged to disclose your refund or cancellation policy to Customers at the time of purchase and/or booking, as applicable, and can refund transactions up to thirty (30) calendar days following the date of said transaction. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. If your refund policy prohibits returns or is unsatisfactory to the Customer, you may still receive a chargeback relating to such sales.
Booksy will automatically process refunds on your behalf from your available balance or deposit amount and shall not be liable for refunds made in error or in violation of your own policies. If your available balance or deposit amount is insufficient to cover the refund, Booksy will withdraw the requested refund amount and credit it back to your Customer. Further refunds may be accepted but will only be processed once your account shows a positive balance. For every refund Booksy may charge a refund processing fee.
Booksy has no obligation to accept any returns of any of your goods or services on your behalf pursuant to the applicable Network Rules (as defined below.) By using the Payment Services, you agree to comply with all applicable bylaws, rules, and regulations set forth by the payment processing networks and Ayden N.V. (“Network Rules”). The payment processing networks amend their rules and regulations from time to time. Booksy may be required to change these terms in connection with amendments to the Network Rules. Significant portions of the Network Rules are available to the public at https://visa.com, https://www.mastercard.com, and https://www.americanexpress.com/merchantopguide. In the event of inconsistency between a Network Rule and these terms, and except as otherwise agreed between Booksy and the payment processing networks, the Network Rule shall apply.
6.23. Right to Set-Off; Collection Rights.
We are entitled to set-off any and all claims against amounts payable to Booksy by SMB. In addition, to the maximum extent provided by law, we may collect any and all obligations due and owing by you to us by deducting them from your pending transactions in the deposit account. Fees shall be assessed at the time of transaction processing and will be deducted from the funds received. Your failure to pay all amounts due and owning shall be deemed an immediate breach of this Agreement for which you will be liable. You further agree to pay all fees and costs, including but not limited to attorneys’ fees and costs, incurred by or on our behalf arising from or related to the collection of any unpaid obligations by you.
6.24. Payment of Taxes.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Payment Services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If you are a SMB based in the United States and in a given calendar year you process (i) more than $20,000 in gross amount of payments and (ii) more than Two Hundred (200) payments, Booksy or its payment processor may be required by law to report information about you and your use of the Payment Services to the Internal Revenue Service (“IRS”). For purposes of determining whether you have met the IRS reporting threshold, the gross amount does not include any adjustments for credits, cash equivalents, discount amounts, fees, refunded amounts or any other amounts. Whether you reach $20,000 in payments or more than Two Hundred (200) payments will be determined by looking at our Payment Service information associated with your SMB Account. In order to be able to meet said regulatory obligations, before SMB meets the thresholds, we will need additional information, including a completed IRS form W9 for U.S.-based SMBs. We are entitled to block the Payment Services for a SMB that fails to provide us with all the needed information based on the applicable taxation rules and regulations.
6.25. Additional Products and Services, Generally.
We may, from time to time, offer additional products and services for purchase by SMBs,such as additional text messages, or payment processing hardware and technical support,and lead generation. Such additional products and services shall be subject to additionalservice fees, which shall be set out at the point of sale and subject to change in or soleand exclusive discretion and set forth in a separate agreement between the Customer andBooksy or a Booksy affiliate offering such products and services. In the event that suchadditional services include lead generation for SMBs, SMB agrees and acknowledges thatit will be responsible for the payment of a commission to Booksy for first-time Customers who utilize the Booking Services. In such an event, Booksy and SMB shallagree in good faith on a set number of leads generated with Booksy retaining ultimateauthority to determine the same.
6.26. Transaction History.
You may, at any time, access your transaction history via your Account settings. Suchhistory may include the ability to track commissions and inventory and otherwise receivestatistics and reports on the performance of your SMB. While we endeavor to keep allsuch information complete, timely, and accurate, we do not warrant that all transactionhistory shall be error-free. You are encouraged to maintain your own transaction historyand financial information and to verify the same with your corporate accountant. Byusing the Booksy Application and Booksy Site you acknowledge that your reliance onany such information provided by Booksy is at your own risk. Booksy shall not be heldliable in the event such information is inaccurate or incomplete.
Part VII – Intellectual Property; Privacy
7.1. Intellectual Property Rights Not Waived.
Furthermore, all material displayed or transmitted on the Services, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics, (hereinafter “Materials,”) are owned by us and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws, and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Services, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on the Services for personal, non-commercial use only, provided that you do not remove or cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed on this Services without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to firstname.lastname@example.org.
You may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any third party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User's personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions, and the like relating to Booksy or its initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independentlydeveloped and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority, or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by third parties, or independently-developed or considered by us, shall be without obligation to you.
7.3. Grant of License by User.
7.4. Confidential Information of Customers.
7.5. Application License by Booksy.
Subject to the terms and conditions of this Agreement, Booksy grants User a nonexclusive, non-transferable, revocable license to use the Booksy Application, in object code form only, on User’s compatible devices including but not limited to mobile devices , solely to support User’s permitted use of the Services.
7.6. DCMA Notice of Infringement.
If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section 7.6.
In order for us to take action, you must do the following in your notice:
(a) provide your physical or electronic signature;
(b) identify the copyrighted work that you believe is being infringed;
(c) identify the item that you think is infringing your work and include sufficient
information about where the material is located so that we can find it;
(d) provide us with a way to contact you, such as your address, telephone number, or email;
(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
19C Trolley Square,
Wilmington, DE 19806, USA
PLEASE NOTE: We cannot take action unless you give us all the required information.
Part VIII – Third-Party Advertisements, Promotions, Platforms, and Links.
8.1. Third Party Advertisements and Promotions.
We may, from time to time, run advertisements and promotions from third parties on the Services. Your dealings or correspondence with, or participation in promotions of advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Services.
8.2. Use of Third-Party Tools and Platforms.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools and Third-Party Platforms.
Any use by you of optional tools offered through the Services is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
8.3. Third-Party Links.
Certain content, products, and services available via our Services may include materials from third-parties.
Third-party links on the Services may direct you to third-party Web sites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any third-party materials or Web sites and/or services, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party with whom you connect via the Services. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
PART IX: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
9.1. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
(A) YOU AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. NEITHER US NOR OUR AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE USE OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM the USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION PROVIDED.
(C) ALTHOUGH ALL INFORMATION AND MATERIALS CARRIED ON SERVICES ARE BELIEVED TO BE RELIABLE, WE MAKE NO REPRESENTATIONS, NEITHER EXPRESSLY NOR IMPLIEDLY, AS TO THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELIABILITY OF THE SERVICES.
(D) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, AFFILIATES, VENDORS, AND/OR OUR OR THEIR RESPECTIVE DIRECTORS AND OFFICERS BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH OR RELATE TO (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, HARDWARE OR ACCESSORIES, MATERIALS, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE BOOKING SERVICES OR PAYMENT SERVICES), OR (4) YOUR VISIT TO ANY SMB OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY SMB OR CUSTOMER IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE BOOKSY SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES. BOOKSY IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY SMB FOR WHICH A CUSTOMER HAS MADE A RESERVATION OR PAID A BILL USING THE PAYMENT SERVICES.
(E) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY UTILIZING THE SERVICES, YOU ACKNOWLEDGE AND AGREE TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates and respective directors, officers, employees, and agents. You and Booksy understand and agree that the disclaimers, exclusions, and limitations in this Section 9.1 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Booksy would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US HARMLESS, AS WELL AS OUR AFFILIATES AND VENDORS AND RESPECTIVE DIRECTORS, OFFICERS, USERS, AND AGENTS, FROM AND AGAINST ALL CLAIMS, SUITS, AND EXPENSES, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE WEB SITE AND/OR THE MOBILE APPLICATION; (B) YOUR NONCOMPLIANCE WITH OR BREACH OF THIS AGREEMENT; (C) YOUR USE OF THIRD-PARTY SERVICES, PLATFORMS, PRODUCTS, LINKS, ADVERTISEMENTS, AND/OR TOOLS; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN SUBMISSIONS AND FEEDBACK; (E) THE UNAUTHORIZED USE OF THE SERVICES BY ANY OTHER PERSON USING YOUR INFORMATION; (F) YOUR FAILURE TO COMLPY WITH THE NETWORK RULES OR PCI-DSS SECURITY STANDARDS, INCLUDING THE COMPROMISE OF ANY PAYMENT INFORMATION.
You understand that SMBs and Customers are solely responsible for their interactions between each other and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you, your SMB as a result of your (or such recipient’s) interaction with a User or visit to any SMB or from any product or service of any SMB. You hereby release the Booksy from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Booksy pertaining to the subject matter of this Section 9.3.
PART X - GOVERNING LAW; ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION.
10.1. Governing Law.
This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Delaware for those Users who enter into this Agreement with Booksy, Inc., and the country of Poland for those Users who enter into this Agreement with Booksy International Sp. z.o.o., without giving effect to any principles that provide for the application of the law of another jurisdiction.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitration choice related to the controversy, dispute, demand, count, claim, or cause of action) between you and Booksy or its successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the UNCITRAL Arbitration Rules and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from UNCIRAL. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the UNICTRAL’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. You and Booksy must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR BOOKSY MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Booksy will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Booksy also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Booksy may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Booksy shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York, New York.
Part XI – Miscellaneous.
11.1. Customer Service.
Should you have any questions, comments or concerns regarding the Services, customer service may be contacted at any time at +1 (206) 735-3553 or via email at email@example.com or by postal mail at 19C Trolley Square, Wilmington, DE 19806.
11.2. Affiliate Disclosure.
We may have an affiliate relationship with third-parties and affiliates to whose products and/or services we link and promote through the Services. Because of this relationship, we may earn a commission on products purchased by a User from a third-party affiliate or partnership..
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
11.5. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as a storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Booksy.
11.7. Rights of Third Parties.
These Terms do not give any right to any third party unless explicitly stated herein.
11.8. Relationship of the Parties.
The parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between them. Neither party has authority to enter into terms of any kind in the name of the other party or of any third-party that may have a right pursuant to these Terms.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Booksy, Inc., 19C Trolley Square, Wilmington, DE 19806, and in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
11.11. Effective Date.