OPERATE
BookedBy Inc (dba SALONULTIMATE) – TERMS OF USE
Revised: June 21, 2024
1. ACCEPTANCE OF TERMS
BookedBy, Inc. ("BookedBy") provides business management solutions under the names SalonUltimate and BookedBy through its proprietary platform (the "BookedBy System"). Any access to or use of the BookedBy System is subject to the terms and conditions in this Terms of Use ("TOU"). BookedBy may, at its discretion, update this TOU at any time. You may access and review the most current version of this TOU at www.bookedby.com.
BY EXECUTING AN ORDER FORM THAT REFERS TO THIS TOU OR OTHERWISE ACCESSING OR USING THE BOOKEDBY SYSTEM, YOU AGREE TO BE BOUND BY THIS TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THIS TOU ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THIS TOU, IN WHICH CASE THE TERM "YOU" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOU, YOU MAY NOT ACCESS OR USE THE BOOKEDBY SYSTEM.
2. OTHER AGREEMENTS
Your access to and use of the BookedBy System is also subject to the applicable order form ("Order Form") between you and BookedBy referencing this TOU, the BookedBy Privacy Policy, available at www.bookedby.com and any usage or other policies relating to the BookedBy System posted or otherwise made available to you by BookedBy (if any) (collectively, "Additional Terms"). The Additional Terms are part of this TOU and are hereby incorporated by reference, and you agree to be bound by the Additional Terms.
3. GRANT OF RIGHTS
(a) During the Term (defined below), BookedBy grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right (i) to access and use the portions of the BookedBy System designated in the applicable Order Form only in the form made available by BookedBy; and (ii) to install, run and use the downloadable portions of the BookedBy System designated in the applicable Order Form on computing devices that you own and control, in executable, machine-readable, object code form only.
(b) All rights granted to you under this TOU are subject to and conditioned upon your compliance with this TOU, including all Additional Terms, and may only be exercised by you for your internal business purposes.
(c) The rights granted to you under this TOU may be exercised by your employees, consultants, contractors, franchisees or agents for whom you have paid the applicable Fees and who have been supplied user identifications and passwords by BookedBy at your request ("Authorized Users"); provided, that you remain responsible for your Authorized Users' compliance with this TOU.
4. SUPPORT
BookedBy shall: (i) use commercially reasonable efforts to maintain the security and integrity of the BookedBy System; (ii) use commercially reasonable efforts to make BookedBy System generally available 24 hours a day, 7 days a week, except for (a) planned downtime (of which BookedBy shall give you at least eight (8) hours' notice through the BookedBy System, and which BookedBy shall schedule to the extent reasonably practicable from Midnight to 7:00 a.m. Eastern Time), or (b) any unavailability caused by circumstances beyond BookedBy's reasonable control, such as events of force majeure, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within BookedBy's possession or reasonable control, and network intrusions or denial of service attacks; and (iii) provide you with general support in accordance with industry standards. BookedBy will also use commercially reasonable efforts to assist you in installing the applicable portions of the BookedBy System and in converting your data from the service being replaced by the BookedBy System.
5. ACCOUNT; YOUR DEVICES
(a) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use or user, and regardless of your knowledge of such use. You agree to notify BookedBy immediately of any unauthorized use of your account or password or any other similar breach of security.
(b) You shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the BookedBy System, including computers, operating systems, web browsers and storage devices. Additionally, you are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the BookedBy System.
6. RESPONSIBILITY FOR CONTENT
(a) You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the BookedBy System, whether publicly posted or privately transmitted ("Content"), are the sole responsibility of the person from whom such Content originated. This means that you, and not BookedBy, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the BookedBy System ("Your Content"), and other users of the BookedBy System, and not BookedBy, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the BookedBy System ("User Content").
(b) To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in this TOU with respect to Your Content; (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party; (iii) Your Content is not illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous; and (iv) Your Content does not contain software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware.
(c) You acknowledge and agree that BookedBy has no obligation to pre-screen Content, although BookedBy reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, BookedBy shall have the right to remove any Content that violates this TOU.
(d) You acknowledge and agree that BookedBy has no obligation to back up Your Content, and that you are solely responsible for backing up Your Content. You acknowledge and agree that you may not have access to Your Content through BookedBy or the BookedBy System following the expiration or termination of this TOU.
7. RIGHTS TO CONTENT
(a) BookedBy does not claim ownership of Your Content. However, you grant BookedBy and its service providers a worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to (i) provide access to the BookedBy System to you and other users; and (ii) monitor and improve the BookedBy System.
(b) Except with respect to Your Content, you acknowledge and agree that, as between you and BookedBy, BookedBy owns all rights, title and interest (including all intellectual property rights) in the BookedBy System, and all improvements, enhancements or modifications thereto, including all Content and other materials therein. The BookedBy System is protected by U.S. and international copyright, trademark, patent and other intellectual property laws and treaties. BookedBy reserves all rights not expressly granted to you.
(c) As used herein, "Aggregate Data" means Your Content that has been aggregated in a manner that does not reveal any personal information and cannot reasonably be used to identify you, your organization or its customers or vendors as the source of such data. You acknowledge and agree that BookedBy may collect or generate Aggregate Data in connection with providing you with access to or use of the BookedBy System, and you hereby grant BookedBy and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data (in any form and any medium, whether now known or later developed) for any lawful purpose.
8. RESTRICTIONS
(a) Except with respect to Your Content and subject to the limited rights expressly granted to you in Section 3, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the BookedBy System; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the BookedBy System; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the BookedBy System for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the BookedBy System or any products or services offered by BookedBy; (v) rent, lease, lend, sell or sublicense any portion of the BookedBy System or otherwise provide access to the BookedBy System as part of a service bureau or similar fee-for-service purpose; (vi) remove or obscure any proprietary notice that appears within the BookedBy System; or (vii) use the BookedBy System in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(b) In connection with your access to or use of the BookedBy System, you shall not: (i) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity; (ii) take any action that imposes an unreasonable or disproportionately heavy load on the BookedBy System or its infrastructure; (iii) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the BookedBy System, or substantially download, reproduce or archive any portion of the BookedBy System; (iv) or (v) violate any applicable local, state, provincial, federal or international law or regulation.
9. FEES
(a) In consideration of the rights granted to you by BookedBy and BookedBy's provision of the BookedBy System, you shall pay the fees specified in the applicable Order Form ("Fees"). All Fees are quoted in United States dollars, and do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). You are responsible for paying and reporting all applicable Taxes including sales and use taxes. Fees may be increased anytime at Company's sole discretion. Fees are non-refundable and the number of physical locations designated in the applicable Order Form cannot be decreased during the relevant subscription Term stated on the Order Form.
(b) Late payments will result in late charges that accrue at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date it is fully paid. Your access to the BookedBy System may be suspended or terminated if you do not make payment on time or in full or if you exceed your entitlements (as set forth in the applicable Order Form).
(c) Other than: (i) SMS Fees which will be invoiced one month in arrears; (ii) Installation Fees which must be paid on or before the date that an installation is scheduled to occur; and (c) as otherwise provided in an Order Form, Fees will be invoiced and will be due in advance of the subscription Term.
10. SUGGESTIONS
If you elect to provide or make available to BookedBy any suggestions, comments, ideas, improvements or other feedback relating to the BookedBy System ("Suggestions"), you hereby grant BookedBy and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license, to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
11. LINKS AND EXTERNAL MATERIALS
The BookedBy System or users of the BookedBy System may provide links or other connections to other websites or resources. You acknowledge and agree that BookedBy does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources ("External Materials"). External Materials are subject to different terms of use and privacy policies. You are responsible for reviewing and complying with such terms of use and privacy policies. You further acknowledge and agree that BookedBy shall not be liable for any damage or loss resulting from or arising out of use of or reliance on any External Materials
12. MODIFICATIONS TO THE OPENSPEND SYSTEM
Subject to any Additional Terms, BookedBy reserves the right to modify, suspend or discontinue the BookedBy System or any product or service to which it connects, with or without notice, and BookedBy shall not be liable to you or to any third party for any such modification, suspension or discontinuance. BookedBy may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the BookedBy System or related services ("Updates"). BookedBy may develop Updates that require installation by you before you continue to access or use the BookedBy System or related services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.
13. INDEMNIFICATION
(a) BookedBy shall indemnify, defend and hold you harmless against any loss, damage, cost, liability and expense (including reasonable attorneys' fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, "Losses") asserting that your use of the BookedBy System infringes the intellectual property of such third party; provided, however, that BookedBy shall have no obligation to indemnify you from any Losses to the extent they arise from: (i) your use of the BookedBy System in any manner that does not comply in all material respects with the terms and conditions of this TOU or applicable laws or regulations; (ii) use of the BookedBy System in combination with any hardware or software not provided or approved by BookedBy; (iii) modifications to the BookedBy System made by any party other than BookedBy; or (iv) Your Content. In the event that any part of the BookedBy System becomes the subject of a Loss or BookedBy reasonably determines that any part of the BookedBy System is likely to become the subject of a Loss, BookedBy may, at its sole discretion: (1) procure a license for you as necessary for you to exercise the rights granted by BookedBy under this TOU; (2) modify or replace the BookedBy System to avoid infringement, provided, however, that the BookedBy System as modified or replaced retains materially the same or better features and functionality; or (3) terminate this TOU and provide a pro rata refund of the fees you have paid to BookedBy for the unused portion of the Term. This Section states your sole and exclusive remedy for claims of intellectual property infringement.(b) You shall indemnify, defend and hold BookedBy and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, "BookedBy Parties") harmless from and against any Losses resulting from or arising out of: (a) Your Content; (b) your violation of this TOU, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the BookedBy System.
14. DISCLAIMER OF WARRANTIES
(a) THE BOOKEDBY SYSTEM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND "WITH ALL FAULTS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BOOKEDBY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BOOKEDBY PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE BOOKEDBY SYSTEM WILL MEET YOUR REQUIREMENTS; OR (ii) ACCESS TO THE BOOKEDBY SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
15. LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT OF BOOKEDBY'S INDEMNIFICATION OBLIGATIONS UNDER THIS TOU, THE BOOKEDBY PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE BOOKEDBY PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE BOOKEDBY PARTIES' TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE BOOKEDBY SYSTEM EXCEED THE AMOUNT PAID BY YOU TO BOOKEDBY FOR ACCESS TO THE BOOKEDBY SYSTEM WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
16. TERM; TERMINATION
(a) The term of this Agreement shall begin upon the earlier of your access to the BookedBy System or the effective date specified in the applicable Order Form, and continue in effect until the conclusion of the term specified in the applicable Order Form, unless earlier terminated in accordance with this TOU (the "Term"). Unless otherwise specified in the applicable Order Form, each Order Form shall automatically renew for successive terms equal in duration to the initial Term, subject to your payment of all applicable fees, unless you give written notice of non-renewal to BookedBy within thirty (30) days before the conclusion of the then current Term.
(b) Notwithstanding anything to the contrary, this TOU or any applicable Order Form may be terminated as follows: (i) by the non-breaching party upon a material breach of this TOU by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party; (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor's relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party's business; or (iii) by BookedBy for any or no reason upon sixty (60) days' written notice (in which case BookedBy shall refund any of your prepaid but unused fees).
(c) Upon termination of this TOU or the applicable Order Form for any reason: (i) you must immediately uninstall and cease using the BookedBy System; (ii) BookedBy may remove and discard Your Content and delete your user account; (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOU shall survive such expiration or termination; and (iv) all rights granted to you under this TOU shall immediately terminate, but all other provisions shall survive termination.
17. GOVERNING LAW AND JURISDICTION
This TOU shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this TOU. You and BookedBy agree any dispute or claim arising out of or relating in any way to this TOU or your access to or use of the BookedBy System, including the validity, applicability, or interpretation of this TOU (collectively, an "Action") shall be brought only in a court of competent jurisdiction in Austin, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
18. EXPORT COMPLIANCE
The BookedBy System is subject to U.S. export laws and applicable laws of other countries. You shall strictly comply with all such laws and assume responsibility to obtain licenses to export, re-export, or import as may be required. You agree not to export or re-export to entities on the most current U.S. export exclusion lists or to any country subject to U.S. embargo or terrorist controls as specified in the U.S. export laws. You represent and warrant that You are not identified on any U.S. Government export exclusions list, including without limitation the Denied Persons List of the U.S. Department of Commerce.
19. MISCELLANEOUS
(a) Third-Party Software. Some components of the BookedBy System may be provided with or have incorporated into them third-party software ("Third-Party Software"), which may include open source software. BookedBy is not the author or owner of Third-Party Software. You acknowledge and agree that: (i) BookedBy has no proprietary interest in any Third-Party Software; (ii) to the extent permitted by applicable law and notwithstanding anything to the contrary in this TOU, any Third Party Software is provided "AS IS" with all faults, and neither the licensor of such Third-Party Software nor BookedBy shall be liable for any direct, indirect, incidental, or consequential damages related to such Third Party Software or the use thereof; and (iii) such Third-Party Software may be subject to separate license restrictions and obligations set forth in the respective license agreements related to such software.
(b) Entire Agreement. This TOU (together with the Additional Terms) constitutes the entire agreement between you and BookedBy concerning your access to and use of the BookedBy System. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and BookedBy with respect to such subject matter. In the event of any conflict between or among this TOU and any Additional Terms, the order of precedence shall be the Order Form then this TOU.
(c) BookedBy SMS Services, Terms and Conditions. Subscribers to Two-Factor Authentication (“2FA”) messages, will receive messages as requested by the user during registration or account login, corresponding to the number of times a user needs to receive 2FA login. You may opt-out at any time. Message frequency varies per user. To opt out of SMS 2FA , text “STOP" to 512-883-0621. When we receive a "STOP" message, we will send one last confirmation SMS to confirm the subscription status post which no more SMS messages will be sent. For more information, just text "HELP" to 512-883-0621. When we receive a "HELP" message, we will provide instructions on how to use this service and how to unsubscribe.
Subscribers to SMS account alerts and promotional messages. We send alerts to end users who have registered within our product and opted in to receive SMS alerts. End users can subscribe to our notifications services while registering an account through the application. Subscribers may opt in by texting “START” to 512-883-9668. You will receive one message to reply to confirm opt in. End users can cancel the SMS service at any time. Just text "STOP" to 512-883-9668. When we receive a "STOP" message, we will send one last confirmation SMS to confirm the subscription status post which no more SMS messages will be sent. For more information, just text "HELP" to 512-883-9668. When we receive a "HELP" message, we will provide instructions on how to use this service and how to unsubscribe.
You may, at any time contact BookedBy support for help at: 617-848-4399, option 2 or email us at support@bookedby.com.
If you have questions about your text plan or data plan, please contact your wireless provider. Participating carriers include: AT&T, Boost Mobile, T-Mobile, Metro PCS, Verizon Wireless, Sprint, U.S. Cellular, Nextel & Virgin Mobile. T-Mobile is not liable for delayed or undelivered messages. As always, messages and data rates may apply for any messages sent and received. You can view our privacy policy here.
(d) No Third-Party Beneficiaries. You agree that, except for BookedBy Parties and as otherwise expressly provided in this TOU, there shall be no third-party beneficiaries to this TOU.
(e) Notices. All notices under this TOU shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by confirmed email. Notices to Company shall be addressed to the attention of its President with a copy to legal@bookedby.com.
(f) Audit. BookedBy may monitor and perform on-site and remote audits of your use of the BookedBy System, for the purpose of verifying your compliance with this TOU.
(g) Amendment; Interpretation; Waiver. This TOU may not be amended by you except in a writing executed by you and an authorized representative of BookedBy. For the purposes of this TOU, the words "such as," "include," "includes" and "including" shall be deemed to be followed by the words "without limitation." If any provision of this TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOU. The failure of BookedBy to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision.
(h) Assignment. You may not assign or delegate any right or obligation under this TOU without the prior written consent of BookedBy.
(i) Force Majeure. Any prevention of or delay in performance by BookedBy hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.
(j) Government Use. This section applies to access to or use of the BookedBy System by a branch or agency of the United States Government. The BookedBy System includes "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and qualifies as "commercial items" as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOU with respect to the such items, and any access to or use of the BookedBy System by the United States Government constitutes: (a) agreement by the United States Government that that such items are "commercial computer software" and "commercial computer software documentation" as defined in this section; and (b) acceptance of the rights and obligations herein.
(k) Publicity. Notwithstanding anything contained in this TOU (including the Additional Terms), BookedBy shall have the right to reference you and the nature of the BookedBy System provided hereunder BookedBy's business development and marketing efforts, including without limitation adding your logo to the BookedBy website, creating case studies, presentations, articles and similar materials using non-confidential information, statistics and materials developed and learned by Company during its performance hereunder (the "Case Materials") and, upon your review and approval of such Case Materials, which approval shall not be unreasonably withheld or delayed, to utilize Case Materials in award programs, public speaking engagements, publications and similar uses.