This Agreement applies also, where applicable, to your commercial use of the Services as an SMB (defined below).
In this Agreement, “Booksy” and “we” refer to Booksy Holdings, Inc. with its registered office in the Des Plaines, Illinois, and all its designated agents, employees and subsidiaries within the United States of America.
For customers based and / or residing in the European Union, the terms "Booksy" and "we" refer to Booksy International Sp. z.o.o. 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.
The terms “User” and “you” mean any user of the Services, in their respective country, and engaged in use of such Services. This Agreement incorporates Booksy’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Booksy Policies”). These Parties shall be collectively referred to as the “Booksy Community”.
By accessing or using the Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services (including, if applicable, purchasing, giving, using, or redeeming any Booksy Gift Card (as defined below) or Merchant Gift Card (as defined below)), and, if applicable, (3) you have authority to register an SMB and act on its behalf. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Booksy may update or revise this Agreement (including any Booksy Polices) from time to time at its sole discretion and without limitation. 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 or the purchase of an Booksy Gift Card) is subject to the version of this Agreement in effect at the time of use.
Part I - Booking Services
- Appointment Booking. Booksy provides the Booking Services to User for the purpose of assisting User in discovering and booking appointments with variety of participating third-party small and medium businesses (each, a “SMB”). In response to a User’s online request for a SMB appointment through the Booksy Site or Booksy Application, Booksy directly contacts the SMB’s computerized database of appointments The availability of appointments is determined at the time of User’s query. Once an appointment is made by User through the Booksy Site or Booksy Application, Booksy will provide confirmation of the appointment to User by email. By using the Booking Services, User agrees to receive appointment confirmations by email after booking an appointment through the Booking Services.
- Booksy Rewards. User may be able to participate in Booksy’s User rewards program (“Booksy Rewards”). Participation is subject to the Booksy Rewards Terms and Conditions.
- Usage Guidelines. User agrees to use the Booking Services only to book appointments at SMBs and then honor those appointments by arriving at the SMBs on time and paying for the services booked and provided. Resale or attempted resale of appointments is prohibited and is grounds for, among other things, cancellation of your appointments or termination of your access to the Services.
Part II – Payment Services
- General Description and Requirements. The Payment Services allow Users to pay bills at participating SMBs through the Booksy Application. Booksy will collect and process payments on behalf of SMB through a recognized professional payment gateway provider. In order to use the Payment Services at a participating SMB, you must: (1) install the Booksy Application on a compatible mobile device; (2) make a reservation for the SMB through the Booking Services; (3) provide valid payment card information through the Booksy Application as further described below; (4) provide and verify your mobile phone number as further described below; and (5) have an Account in good standing. There is no fee to you to use the Payment Services, but your mobile carrier’s standard text message and data charges may apply; you are responsible for any fees charged by your mobile carrier in connection with your use of the Payment Services and Booksy Application.
To confirm that the payment card information you have provided is accurate, we will place a temporary $1.00 authorization hold on your debit or credit card at the time you provide your payment card information through the Booksy Application. After we verify that your payment card information is accurate, usually within a few days, the $1.00 hold will be removed. In no event will your payment card actually be charged for this $1.00 authorization.
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 such information 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 conditions applicable to your use of such debit or credit card account(s) or applicable law. When you authorize a payment using a debit or credit card account via the Booksy Application, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the debit or credit card account. By using Booking Services, you acknowledge and accept the binding agreement to bear full financial responsibility for all Booking Services that you schedule using Booksy or information contained on Booksy.
- Verified Mobile Phone Number. In order to use the Payment Services, you must provide a valid mobile phone number through the Booksy Application and verify such number as instructed by us. To verify your mobile phone number, we will send you a code via text message to the mobile phone number you provided, and you must enter that code as instructed in the Booksy Application. If you change your mobile phone number, you must promptly provide and verify your new mobile phone number. When you provide your mobile phone number, you expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages relating to the Payment Services at that number.
- Account Settings. You may establish certain default settings for your use of the Payment Services through the Booksy Application, such as your preferred payment card account. You may change these settings through the Booksy Application.
- Payment Authorization and Settlement. When you indicate through the Booksy Application that you intend to pay your bill using the Payment Services, you authorize Booksy to charge your debit or credit card for the full amount of your final bill. You may only use the Payment Services to pay the full amount of the bill; no split checks or partial payments are permitted. You are responsible for timely payment of all amounts owed by you to Booksy.
Receipts and Transaction History. As a courtesy, we will email a receipt to the email address associated with your Account upon completion of a transaction using the Payment Services. You may print and save copies of these receipts. If you would like a paper receipt, you must request one from the SMB at the time of the transaction.
Booksy is not liable for any payments that the Payment Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment 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 interferences from an outside force) prevent the execution of the transaction. To the extent that any amounts owed cannot be collected from your debit or credit card account through the Payment Services, you are solely responsible for paying the applicable SMB(s) by other means, such as cash or Paypal, as required for the full value of the services scheduled.
Payment Schedule. Booksy will automatically initiate a payout of SMB’s proceeds to your valid, linked US bank account within 2-3 business days of completion and settlement of payments.
Chargebacks. If SMB’s customer is not the authorized user of the Card or SMB’s customer 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 network, Booksy gateway provider, SMB’s 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 may withhold the chargeback amount in a reserve. We may recoup the amount of any chargeback and any associated fees, fines, in addition to a Booksy Service fee of up to $25.00 or assessed by a network or our processor, any proceeds due to you, or any bank account or other payment instrument. If you have pending chargebacks, we may delay payments, 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.
You will assist us when requested, 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, 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 fifteen (15) days of our request, may result in an irreversible chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating chargeback disputes.
- Refunds. By accepting card transactions through the Payment Services, you agree to process returns of, and provide refunds and adjustments for, your goods or services through your SMB’s Account in accordance with these terms. You are obliged to disclose your return or cancellation policy to customers at the time of purchase. 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. You can process a refund through your SMB’s Account up to sixty (60) days from the day you accepted the payment. If your available balance is insufficient to cover the refund, Booksy will withdraw up to the requested refund amount (the sale amount minus the initial transaction fee) from a payment instrument registered with your SMB’s Account and credit it back into your customer’s Card. The Fees are also refunded by Booksy, so the full purchase amount is always returned to your customer. Booksy has no obligation to accept any returns of any of your goods or services on your behalf Applicable Network Rules. By using the Payment Services, you agree to comply with all applicable bylaws, rules, and regulations set forth by the Networks (“Network Rules”). The 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 Network, the Network Rule shall apply.
- 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 in a given calendar year you process (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Booksy will 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 200 payments will be determined by looking at the taxpayer identification number (“TIN”) associated with your SMB Account, including the applicable social security number (“SSN”) or entity identification number (“EIN”)
- PCI Compliance. If you store, process or transmit cardholder data, you agree to comply with the applicable Payment Card Industry Data Security Standards (PCI-DSS), as well as any requirements under the Network Rules. You will cooperate in forensic investigations as required by Booksy or its partners. For additional information, including tools to help you assess your compliance, see http://www.visa.com/cisp and https://www.mastercard.com/sdp.
- 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. 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) days of when it first appears on your electronic transaction history may be deemed a waiver of any right to amounts owed to you.
- Our Fees. By using Payment Services, you agree to the Payment Services Fees. Payment Services Fees are equal to 0.45% of the total value of Booking Services plus applicable payment service fees, as determined by the payment gateway provider, and any other applicable transaction fees.
- Deposits. Booksy may require the SMB to maintain Deposits in an escrow account to act as a provision against chargebacks. The amount of such deposits will be determined by Booksy.
- Prohibited Industries. You may not use the Payment Services for the following businesses or business activities: (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 advisers; (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. Violations of this requirement may result in account termination.
Part III - Gift Card Services
- Partners may provide Clients with the possibility of using electronic vouchers, entitling their Clients or persons indicated by them to use the Partner's Service on terms specified in advance by him, with electronically assigned information on the value of the voucher ("Gift Card"). In particular, the Gift Card may be in the form of an e-mail or PDF (or other) document.
- The Gift Card is offered by Partners in the System through dedicated functionality. Before issuing a Gift Card, it must be paid for by the Customer. The Customer prepares the Gift Card by an external electronic payment provider. Booksy does not process any information, including personal data, regarding payments made in connection with the payment of the Gift Card.
- Partners are solely responsible for the sale, transfer and implementation of the Gift Card and for the proper performance of the Service covered by the Gift Card.
- The payment operator's commission for making a payment to purchase a Gift Card does not charge the Customer.
The rules on which the Gift Card is made available and implemented are specified by the Partner in the content of the offer or regulations made available by him in the System. In particular, the Partner may specify:
- what Service, scope or type of Partner Services the Gift Card applies to;
- value of the Gift Card expressed in currency;
- discount (e.g. Gift Card costs £100/€100, but authorises to use the Service worth £120/€120);
- the validity period of the Gift Card, i.e. the period for which the Gift Card can be used;
- whether the Gift Card is personal or bearer's;
- if the Service is used for a price lower than the value of the Gift Card, the remaining amount is forfeited or remains to be used;
- Is it possible to use a Partner Service with a price higher than the value of the Gift Card or the amount remaining to be used by paying an additional payment;
- rules and dates for returning a Gift Card;
- if the Gift Card may be blocked if it is lost;
- additional elements, e.g. priority in booking dates or the possibility or not being able to take advantage of certain promotions.
The rules set by the Partner on which the Gift Card is made available and implemented shall not exclude or limit:
- universally binding provisions, including provisions protecting consumers;
- chargeback refund rules set out in relevant regulations of banks or payment card / credit card operators / providers.
- The Gift Card cannot be exchanged for cash without the consent of the Partner.
Part IV – Terms for All Services
- Your Account. You must create an account with Booksy through the Booksy Site or Booksy Application (“Account”) in order to use the Booking Services, Payment Services or to purchase, gift, or redeem (as applicable) Booksy Gift Cards and Merchant Gift Cards. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the Booksy registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Booksy of any unauthorized use of your Account or any other breach of security related to your use of the Services.
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. Registration 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 PayPal and a PayPal account is accordingly required for the registration of an SMB Account. You agree that a specified fee will be periodically, monthly or semi-annually, depending on your arrangement with Booksy, transferred from your PayPal account for placing your offers via Services and maintaining the SMB account (“SMB Service Fee”). The first SMB Service Fee will be transferred at the moment of registration along with the Registration Fee if applicable. Booksy reserves the right to waive your SMB Service Fee for a certain period. After such period you will be presented with an offer of a certain SMB Service Fee and a pertinent amount will be transferred from your PayPal 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.
You can cancel your SMB Account by either canceling it in the PayPal system or sending us an email on firstname.lastname@example.org. However, Booksy will not refund you for the period already paid for, even if you were not using your SMB account during that period or your offer was not listed in the Services. In case of a cancellation, we reserve the right to delete your SMB Account from the Site within 30 days.
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.
- Modifications to Services. Booksy reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Booksy Site, Booksy Application, SMBs, and/or Merchants. Booksy shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
- Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Booksy Content”) are provided to User by Booksy or its partners or licensors solely to support User’s permitted use of the Services. The Booksy Content may be modified from time to time by Booksy in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the Booksy Content by User shall constitute a material breach of this Agreement. Booksy and its partners or licensors retain all rights in the Services and Booksy Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Booksy or any third party is granted under this Agreement.
- Application License. Subject to the terms and conditions of this Agreement, Booksy grants User a non-exclusive, non-transferable, revocable license to use the Booksy Application, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
- Use Restrictions. The Services and Booksy Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Booksy expressly reserves all its rights and remedies under applicable state and federal laws. Booksy reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Services or copy any Booksy Content, except as expressly authorized by Booksy; (2) take any action that imposes or may impose (in Booksy’s sole determination) an unreasonable or a disproportionately large load on the Services or Booksy’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Booksy Content to a third party; (5) use any portion of the Services or Booksy Content to provide, or incorporate any portion of the Services or Booksy Content into, any product or service provided to a third party; (6) 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); (7) modify any Services or Booksy Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Booksy Content; (9) use the Services or Booksy Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Booksy Content or access or use the Services or Booksy Content for competitive analysis or benchmarking purposes.
- Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, the Code of Federal 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 set forth therein. If you are a Government End User, please consult first with your relevant legal department prior to use to confirm your use is compliant with the standards and policies under the Code of Federal Regulations.
- Export Control. You may not use, export, or re-export any Booksy Application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent 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 “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
- Termination. Booksy may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Booksy may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Booksy Policies) or, with respect to purchasers of Booksy Gift Cards or Merchant Gift Cards and Users of the Payment Services, if we receive excessive chargebacks on the debit or credit card associated with your Account. After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account, and you may lose access to and be unable to use any accumulated points as described in the Booksy Rewards Terms and Conditions. You agree that Booksy shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Booksy will have no liability whatsoever.
- Reviews, Comments, Communications, and Other Content. The Services may permit you to submit reviews, comments, and ratings; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to SMBs and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., insects in the local, infections, food poisoning, etc.). You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. Booksy reserves the right (but has no obligation) to monitor, remove, or edit User Content in Booksy’s sole discretion, including if User Content violates this Agreement (including any Booksy Policies), but you acknowledge that Booksy may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant Booksy a nonexclusive, perpetual, royalty-free, irrevocable, and fully sub-licensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. Booksy takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
- Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by Booksy and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Booksy’s request) defend Booksy, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Booksy Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
Liability Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SPECIFIED BELOW WITH RESPECT TO BOOKSY GIFT CARDS AND MERCHANT GIFT CARDS, IN NO EVENT SHALL THE BOOKSY PARTIES 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, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE BOOKSY CONTENT, 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 MERCHANT 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 OR THE BOOKSY CONTENT. BOOKSY IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY SMB FOR WHICH A USER HAS MADE A RESERVATION OR PAID A BILL USING THE PAYMENT SERVICES OR ANY MERCHANT THAT ISSUES A MERCHANT GIFT CARD.
WITH RESPECT TO PURCHASES OF BOOKSY GIFT CARDS OR MERCHANT GIFT CARDS, OR IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT PERMITTED BY LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE PRICE YOU PAID FOR YOUR MOST RECENT PURCHASE OF AN BOOKSY GIFT CARD OR MERCHANT GIFT CARD (AS APPLICABLE) OR FIFTY US DOLLARS ($50).
You and Booksy understand and agree that the disclaimers, exclusions, and limitations in this Section 33 and in Section 34 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.
Disclaimer of Warranties. THE SERVICES, ALL BOOKSY CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. BOOKSY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. BOOKSY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT BOOKSY WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. BOOKSY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BOOKSY.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Fraudulent Actions of Users. Booksy is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent or otherwise invalid ("Fraudulent Actions"). By using the Services, you hereby release Booksy from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify us of any Fraudulent Actions which may affect the Services. Booksy reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, Fraudulent Actions.
- Release. You understand that SMBs, Merchants and Users 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 (or, if applicable, any recipient of an Booksy Gift Card or a Merchant Gift Card) as a result of your (or such recipient’s) interaction with a User or visit to any SMB or Merchant or from any product or service of any SMB or Merchant. You hereby release the Booksy Parties 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 Parties pertaining to the subject matter of this Section 36.
Notify Us of Infringers. 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.
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:
Booksy Holdings, Inc.
1011 East Touhy Avenue
Des Plaines, Illinois 60018, USA
We cannot take action unless you give us all the required information.
- Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
- Assignment. 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.
- Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. 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 the Booksy Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’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 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.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
- Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Illinois consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.