PLATFORM TERMS OF SERVICE
Last Updated: 3/14/17
These Platform Terms of Service are incorporated by reference and made a part of the Software-as-a-Service Subscription (the “SaaS Subscription”) between Salon (as defined in the SaaS Subscription) and BeautyLynk Corporation.
These Platform Terms of Service together with the SaaS Subscription (collectively referred to as the “Agreement”) represent the Parties’ entire understanding regarding the Platform. Except as provided otherwise in this Agreement, this Agreement supersedes all prior discussions and agreements between and among the Parties with respect to the matters contained herein.
By posting, uploading, or transmitting content or information such as logos, related intellectual property, messages, videos and other materials (“Salon Assets”), Salon hereby grants to BeautyLynk a limited, royalty free and non-exclusive license to store, copy, transmit, publish, publicly display, and otherwise use Salon Assets on the Platform and in BeautyLynk marketing materials.
Term and Termination.
Unless terminated sooner as provided below or otherwise specified in the SaaS Subscription, this Agreement shall become effective as of the Effective Date and shall remain in effect for the Initial Term, after which this Agreement shall automatically renew and continue to remain in effect for successive one-year renewal terms (“Terms”). Salon may terminate its Agreement with written notice to BeautyLynk at any time during the Initial Term or at least thirty (30) days prior to the end of a subsequentTerm, with such termination applicable to the upcoming period. BeautyLynk may terminate this Agreement, for any reason or no reason, with or without cause, upon written notice to Salon at any time. Either Party may terminate this Agreement in the event that the other Party is in breach of this Agreement and such breach has not been cured within sixty (60) days after receipt by the breaching Party of written notice of such breach. In the event of any termination, all outstanding obligations and responsibilities of the Parties shall remain in force and effect until fully performed.
End User Privacy and Data.
Representations, Warranties and Covenants of Salon.
As of the Effective Date and at all times during this Agreement, Salon hereby represents, warrants and covenants to BeautyLynk as follows:
- Salon is a validly existing businesss in its state of formation and where operating, , has the full power and authority to enter into and perform this Agreement and has authorized the execution, delivery and performance of this Agreement by all requisite corporate or other actions.
- Salon is registered and in compliance with all applicable state laws governing its activities of performing beauty services.
- Salon shall indemnify, hold harmless and defend each of BeautyLynk, its independent contractors, and their respective owners, affiliates, directors, officers, employees, agents, contractors and advisors (each, an “Indemnitee”), from and against any and all damages, awards, losses, fines, penalties, costs or expenses (including reasonable attorneys’ fees) relating to, or arising out of, any breach by Salon of this Agreement, including the provisions of any of the preceding representations, covenants, and warranties.
Representations, Warranties and Covenants of BeautyLynk.
As of the Effective Date and at all times during the Agreement, BeautyLynk, hereby represents, warrants and covenants to Salon as follows:
- BeautyLynk is a validly existing corporation under the laws of Delaware, has the full power and authority to enter into and perform this Agreement and to participate in the activities described in this Agreement, and has authorized the execution, delivery and performance of this Agreement by all requisite corporate or other actions.
- The Platform and all BeautyLynk content contained therein are in compliance with all applicable laws, rules and regulations.
- BeautyLynk shall indemnify, hold harmless and defend each of Salon, its independent contractors, and their respective owners, affiliates, directors, officers, employees, agents, contractors and advisors (each, an “Indemnitee”), from and against any and all damages, awards, losses, fines, penalties, costs or expenses (including reasonable attorneys’ fees) relating to, or arising out of, any breach by BeautyLynk of this Agreement, including the provisions of any of the preceding representations, covenants, and warranties.
Salon acknowledges and agrees that, as between Salon and BeautyLynk, BeautyLynk owns and retains all right, title and interest in and to the intellectual property it has developed and owned in connection with providing its services under this Agreement, including without limitation the Platform (collectively, the “BeautyLynk IP”), and that BeautyLynk is not, under this Agreement, granting Salon any ownership, right, title or interest (including any license) in or to any of the BeautyLynk IP.
BeautyLynk and Salon shall hold all Confidential Information (as defined below) of the other Party in confidence, shall not disclose such Confidential Information to third parties unless third parties are under a similar confidentiality agreement, and shall use such Confidential Information solely for the purpose of performing its obligations under this Agreement. “Confidential Information” means any proprietary, business, financial, customer, vendor or technical information, data or technology, including trade secrets, software (including source and object code, and any data or files resulting from installation of such software) or other intellectual property (or rights therein), including the BeautyLynk IP, personal information, any independent contractors, any publishers or user of the BeautyLynk Website, or any third party (including BeautyLynk’s affiliates, clients, suppliers or vendors) that is, directly or indirectly, disclosed to the other Party or which either Party otherwise comes into possession of, or learns, in connection with this Agreement, whether in writing, orally, or otherwise, including the terms of this Agreement. Confidential Information does not include information that is or becomes generally known to the public through no wrongful action by Salon or BeautyLynk. The obligations set forth in this Section 8 shall not apply soley to the extent any Confidential Information is required to be disclosed by law.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) THE PLATFORM AND SERVICES PROVIDED BY BEAUTYLYNK UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND AS AVAILABLE BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING OF OR RELATING TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE, CONDITION, OR NON-INFRINGEMENT (AND ALL SUCH REPRESENTATIONS, WARRANTIES OR GUARANTIES ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT), AND (B) IN NO EVENT (AND WHETHER ARISING IN CONTRACT, WARRANTY, TORT OR OTHER LEGAL THEORY) SHALL (I) BEAUTYLYNK’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (X) $1,000 OR (Y) TEN PERCENT OF THE TOTAL FEES PAID BY SALON TO BEAUTYLYNK UNDER THIS AGREEMENT DURING THE FULL CALENDAR YEAR (OR PORTION THEREOF) IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY, OR (II) BEAUTYLYNK BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE OR PROFIT, A EVEN IF BEAUTYLYNK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING LIMITATIONS OF THIS SECTION 9 SHALL APPLY EVEN IF SALON’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 9, BEAUTYLYNK’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
No Provision of Beauty Services.
The Parties agree and understand that BeautyLynk is providing a software platform for use by Salon. Nothing contained herein shall be deemed the provision of, and BeautyLynk does not provide, beauty services.
Any provision in this Agreement that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, (a) be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Agreement are declared to be severable, and (b) be operative, enforceable or valid to the maximum extent possible in such jurisdiction, rather than being declared totally inoperative, unenforceable, or invalid.
Governing Law; Venue.
This Agreement shall be governed by and interpreted under the substantive laws of the State of Delaware, without regard to its conflict of laws principles and the laws of the United States of America, where applicable. Each Party hereby expressly consents to the exclusive jurisdiction of the state or federal courts in Delaware, in New Castle County, waives any objections or right as to forum non conveniens, lack of personal jurisdiction or similar grounds, and agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
If and to the extent that a Party’s (in such capacity, the “Affected Party”) performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed directly or indirectly by flood, earthquake, riots, acts of terrorism, acts of war, pandemic illness, embargoes, strikes and labor shortage, utility outages, outage or malfunction of telecommunication lines, elements of nature or acts of God or any other cause beyond the reasonable control of the Affected Party (each, a “Force Majeure Event”), then the Affected Party shall be excused for such hindrance, delay or non-performance, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues, provided that the Affected Party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent reasonably possible. Notwithstanding any other provision hereof, strikes by and labor disputes involving any Party’s or any permitted subcontractor’s own employees, and any labor shortage affecting a Party or any permitted subcontractor, shall not constitute a Force Majeure Event.
Updates and Amendments.
This Agreement may be amended by an instrument in writing to be executed by the Parties or by their successors or assignees.The Parties hereby acknowledge and agree to electronic delivery of updates and amendments to the email addresses provided upon initial use of the Platform.
Relationship of the Parties.
The Parties agree that each Party is acting as an independent contractor in performing their respective obligations and for all other purposes under this Agreement and that the relationship between the Parties shall not constitute a partnership, joint venture or agency.
No delay or omission by any Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights.
This Agreement may be executed by facsimile or other electronic transmission signature and in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute but one and the same instrument.
This Agreement shall be binding upon the Parties and their respective successors and permitted assigns. Salon may not assign this Agreement without the prior written cosent of BeautyLynk. BeautyLynk may freely assign this Agreement, and its rights and obligations under this Agreement, to any person or entity that acquires all or substantially of the business or assets of BeauyLynk to which this Agreement relates (whether by way of asset sale, merger, consolidation, stock sale or otherwise).
Each Party (at its own expense) shall execute and deliver such further and other documents, instruments, information and items, and take such other actions, as the other Party may reasonably request, or as may be reasonably necessary to effectuate the transactions contemplated by this Agreement or the services provided under this Agreement.