Terms of Service
These Terms of Service (“Terms of Service”) govern your use of the mobile and internet-based business tools and services offered by GlossGenius, Inc. (“GlossGenius,” “we,” “our,” or “us”) to you (“you,” “your” or “Professionals”) at and through the website glossgenius.com and cardreader.glossgenius.com and any other sub-domain, our mobile app (the “App”), the website(s) we allow you to create, and the related services we provide (collectively, the “GlossGenius Service(s)”). By using the GlossGenius Services, you agree that you have read and understood and agree to be bound by these Terms of Service.
These Terms of Service also apply to individuals who access or use any component of the GlossGenius Service as a customer of a Professional — including by booking appointments, making purchases, or otherwise transacting through any booking page, widget, or checkout flow powered by GlossGenius (each, an “End Client”). For the avoidance of doubt, references to “Clients” in these Terms of Service are references to End Clients in the context of their interaction with the GlossGenius Service. End Client agrees to be bound by these Terms of Service, including, without limitation, the mandatory arbitration and class action waiver provisions in Section 23. If you are an End Client and do not agree to these Terms of Service, do not complete a booking or transaction.
The GlossGenius Service is a platform that powers the businesses of Professionals and facilitates interaction with clients seeking the services of such Professionals' businesses (collectively or individually, the “Clients”). Each business account must have an account owner and administrator who is the “Account Owner” of the GlossGenius Services. Account Owners, Professionals, and Clients are collectively or individually referred to herein as “Users.” Any subscription or registration related to the GlossGenius Services (each, a “Subscription”), are subject to these Terms of Service. Your Subscription may only be used for the purpose of representing and enabling your business. You must be an authorized representative of the business you represent on the GlossGenius Services. Personal, consumer or family use of a Subscription is not intended or permitted.
GlossGenius is not a party to any service agreement, appointment booking, or transaction between an End Client and a Professional. Professionals are independent service providers and are not employees, agents, joint venturers, or contractors of GlossGenius. GlossGenius does not employ, supervise, direct, control, license, or guarantee the quality, safety, performance, legality, or outcome of any service provided by any Professional to any End Client.
THESE TERMS OF SERVICE SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE GLOSSGENIUS SERVICES, WHETHER IN CONNECTION WITH A SUBSCRIPTION OR FREE TRIAL OR AS AN END CLIENT, AND REQUIRE MOST DISPUTES BETWEEN YOU AND GLOSSGENIUS TO BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION, UNLESS YOU ARE AN END CLIENT AND EXERCISE THE OPT OUT RIGHTS IN SECTION 23(h) BELOW. EVEN IF YOU OPT OUT, BY ACCEPTING THESE TERMS OF SERVICE AND UTILIZING THE GLOSSGENIUS SERVICES, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN ANY CLASS ACTION, CLASS-WIDE ARBITRATION, OR REPRESENTATIVE PROCEEDING AGAINST GLOSSGENIUS.
BY ACCESSING OR USING THE GLOSSGENIUS SERVICES, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU (1) ARE 18 YEARS OF AGE OR OLDER, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE, DO NOT ACCESS AND/OR USE THE GLOSSGENIUS SERVICES. PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
IN PARTICULAR, PROFESSIONALS SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE MUNICIPALITIES, CITIES, COUNTIES, STATES, AND COUNTRIES BEFORE PROVIDING SERVICES. SOME STATES HAVE LAWS THAT REGULATE COSMETOLOGY AND COSMETOLOGY-RELATED SERVICES, IN ADDITION TO PAYMENT AND PAYMENT PROCESSING COLLECTIONS PRACTICES. IN MANY STATES, BEAUTY SERVICES PROVIDERS MUST BE LICENSED BEFORE THEY ARE ABLE TO COMMERCIALLY PROVIDE BEAUTY SERVICES. PENALTIES MAY INCLUDE FINES OR OTHER ENFORCEMENT.
GLOSSGENIUS SHALL HAVE NO LIABILITY TO ANY END CLIENT FOR ANY ACTS, OMISSIONS, ERRORS, REPRESENTATIONS, WARRANTIES, BREACHES, OR NEGLIGENCE OF ANY PROFESSIONAL, OR FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. ANY DISPUTE BETWEEN AN END CLIENT AND A PROFESSIONAL SHALL BE RESOLVED DIRECTLY BETWEEN THE END CLIENT AND THE APPLICABLE PROFESSIONAL WITHOUT INVOLVEMENT OF GLOSSGENIUS.
1. CHANGES TO TERMS OF SERVICE
We reserve the right, in our sole discretion, to change, modify, add, or remove portions of the Terms of Service at any time. Your use or continued use of the GlossGenius Services after we have updated these Terms of Service constitutes your understanding and acceptance of the updated Terms of Service. We will provide you with notice of any material changes to these Terms of Service by updating the “Last Updated” date. We encourage you to review the Terms of Service periodically.
2. PRIVACY
Our Privacy Policy describes how we collect, use, and disclose personal information from you in the provision of the GlossGenius Services. By accepting these Terms of Service or by using the GlossGenius Services, you agree to our Privacy Policy.
Professionals who use the GlossGeniusServices acknowledge that you act as the “controller” or “business” with respect to the personal information of your Clients and that GlossGenius acts as a “processor” or “service provider” as such terms are defined under applicable privacy or data protection laws, including the California Consumer Privacy Act and similar laws adopted in other states. GlossGenius will process such personal information in accordance with our Data Processing Addendum, which is incorporated into these Terms of Service by reference.
End Clients that book or transact through the GlossGenius Services acknowledge that GlossGenius may collect, use, and disclose their personal information: (a) as a service provider on behalf of the applicable Professional; and (b) for GlossGenius’s own operational, analytics, and product improvement purposes, in each case in accordance with GlossGenius’s Privacy Policy available at glossgenius.com/legal/privacy.
3. PAYMENTS TERMS
Our Payments Terms describes our practices regarding payments, disbursements, refunds and other matters related to financial transactions that are conducted using the GlossGenius Services. By accepting these Terms of Service or by using the GlossGenius Services, you agree to be bound by the terms of our Payments Terms.
4. REFERRAL PROGRAM POLICY
Our Referral Program Policy describes the terms and conditions governing GlossGenius’ Referral Program. By accepting these Terms of Service or by participating in the GlossGenius Referral Program, you agree to be bound by the terms of our Referral Program Policy.
5. GLOSSGENIUS ACCOUNT
Your GlossGenius account (“Account”) gives you access to the GlossGenius Services that we may establish and maintain from time to time in our sole discretion. You confirm upon creating an Account that you are 18 years of age or older and either a legal resident of the United States, a United States citizen or a business entity authorized to do business by the states in which you operate. You may only use the GlossGenius Services and your Account for business purposes in the fifty states of the United States of America, its territories, and the District of Columbia.
When creating your Account and/or using the GlossGenius Services, you must provide accurate, complete, and appropriate information. You acknowledge and agree that you will not intentionally omit and/or misrepresent any facts or material information and that if there are any such occurrences of knowingly omitted and/or misrepresented facts or information, you will promptly rectify them. You consent that GlossGenius has the right to verify any such information submitted by you. GlossGenius has the right to suspend or terminate any User that provides incomplete, inaccurate, or untrue information.
You understand and agree that you are solely responsible for compliance with any and all applicable laws, rules, and regulations that may apply to your use of the GlossGenius Services and your GlossGenius Account, including any and all products and services you may provide or make available through GlossGenius. You additionally represent and warrant that you are, or if you are a salon, merchant or other business entity, that all of your employees, independent contractors or agents who are providing services to Clients each are, licensed professionals in full compliance with the laws and regulations in your particular state, and that all business information provided to describe you or them is correct. In addition, you certify that you are duly licensed to provide services to clients “in-home” or outside of your place of business should such services be advertised as such.
You are solely responsible for the activity that occurs on your Account, and you are solely responsible for keeping your Account password secure. Therefore, we suggest using safe internet practices such as creating a strong password, using Multi-Factor Authentication (MFA), not sharing your Account login information with others, and only logging in on your own personal or business devices. You must notify GlossGenius immediately by email at support@glossgenius.com of any unauthorized use of your Account. Additionally, you may never use another User’s account without permission.
If you are an Account Owner, GlossGenius will treat all data associated with the Account that is used by you and the other Professionals who are provisioned to access your Account as owned by you. If you are a Professional using the GlossGenius Services under the Account of an Account Owner, you acknowledge and agree that GlossGenius will treat all Account data as solely and exclusively owned by the Account Owner and not you. GlossGenius has no responsibility, and undertakes no liability, with respect to the internal business disputes of Professionals on its platform and reserves the right to rely on the Account Owner designation, unless required by a court of competent jurisdiction. For the avoidance of doubt, the Account Owner, and not any other Professional provisioned to use such Account, will have the sole right to direct the transfer, use, deletion, export and other processing of the data associated with such Account.
You acknowledge that GlossGenius may continually develop additional features, functionality, and capabilities and that GlossGenius reserves the right to modify the GlossGenius Services at any time in its sole discretion. Some new features, functionality, or capabilities may be subject to additional fees as determined by GlossGenius.
6. GLOSSGENIUS PROGRAMS AND BETA SERVICES
GlossGenius may run certain promotions, programs, opportunities, sweepstakes, contests and giveaways (“GlossGenius Programs”). GlossGenius Programs will be subject to these Terms of Service and any additional terms and conditions applicable to the GlossGenius Program that have been presented to you. GlossGenius reserves the right to, at any time and in its sole discretion, modify, change, add to, take away from, supplement or terminate any of these GlossGenius Programs. This includes, but is not limited to, changing the name, offers, fees and/or eligibility requirements for participation in any GlossGenius Program. Further, GlossGenius retains sole discretion to determine whether the requirements of the GlossGenius Program have been met. GlossGenius will seek to notify you of any material changes to the GlossGenius Programs but will not be liable for any failure to do so.
From time to time, at GlossGenius’s sole discretion, GlossGenius may invite you to try Beta Services (new features and/or functionality) at no charge. You may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. By participating in any Beta Services, you agree to provide Comments to GlossGenius as reasonably requested regarding your use of the Beta Services. BETA SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND. GlossGenius may discontinue Beta Services at any time in GlossGenius’s sole discretion and may never make such Beta Services generally available. GlossGenius will have no liability for any harm or damage arising out of or in connection with a Beta Service.
7. RESTRICTIONS
Our Acceptable Use Policy describes how you may make an acceptable use of the GlossGenius Services and any Account, including what practices are prohibited in the creation of, access to, and use of the GlossGenius Services and any Account. This may include, but is not limited to, engaging in conduct that harasses or intimidates others, providing products containing CBD, THC, or ketamine, and selling services that include sex or adult content. By accepting these Terms of Service or by using the GlossGenius Services, you agree to be bound by the terms of our Acceptable Use Policy.
You further agree that (i) enforcement of the Acceptable Use Policy is solely at GlossGenius’ discretion, and failure to enforce the Acceptable Use Policy does not constitute a waiver of our right to enforce it in other instances; (ii) each Professional is responsible for the compliance of its Client(s) with the Acceptable Use Policy, and each Account Owner is responsible for the compliance of its Professional(s) with the Acceptable Use Policy; (iii) if a Professional or any Client of a Professional violates the Acceptable Use Policy, GlossGenius may suspend the Professional’s or related Client’s access to or use of the GlossGenius Services or relevant Account; and (iv) if an Account Owner or any Professional on whose behalf the Account Owner purchased the GlossGenius Services violates the Acceptable Use Policy, GlossGenius may suspend the Account Owner’s or any related Professional’s access to or use of the GlossGenius Services or relevant Account.
GlossGenius reserves the right to remove or reclaim any Accounts, services and products you offer, or your content that is in violation of the Acceptable Use Policy, which shall be determined in GlossGenius’s sole discretion.
HIPAA
If you are a covered entity subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and use or plan to use the GlossGenius Services to create, receive, maintain or transmit Protected Health Information as defined under HIPAA (“PHI”), you must (i) request and sign a Business Associate Agreement (“BAA”) with GlossGenius, (ii) subscribe and use the applicable GlossGenius Services configured for HIPAA, (iii) comply with any privacy and security configurations or documentation that GlossGenius requests, and (iv) comply with any and all GlossGenius policies regarding HIPAA’s privacy and security rules and PHI. Unless and until you have completed these steps, you shall not use GlossGenius’ services for any health-related purpose nor may you enter, upload, disclose or provide any PHI or HIPAA-related data to GlossGenius, including its third-party vendors and service providers. You are solely responsible for determining whether you are subject to HIPAA and for evaluating the suitability of the GlossGenius Services for your business purposes. You agree that unless you have entered into a BAA with GlossGenius, GlossGenius shall have no liability under this Agreement in connection with PHI or HIPAA-related data, notwithstanding anything in this Agreement or in HIPAA.
Consumer Health Data
Certain states have restrictions on collecting, sharing, and/or selling consumer health data without first receiving the individual’s affirmative opt-in consent. Consumer health data is generally defined as personal information that is linked or reasonably linkable to a consumer and that identifies the consumer’s past, present, or future physical or mental health status. It can include information about a Client’s pregnancy status, menstrual cycle, allergies, or topical medications that they use. Consumer health data may also include not only traditional health information but biometric data and inferences about a consumer’s health condition derived from purchases of non-health products or services.
You agree that if you are providing services in a state with a consumer health data law, you shall not collect, share, or sell consumer health data through the GlossGenius website, Services, or App, unless you have subscribed to and use the applicable GlossGenius Services configured for HIPAA, have completed a BAA with GlossGenius, and have instituted the requisite disclosure and opt-in consent mechanisms, cybersecurity and privacy practices, and any other requirements of your jurisdiction’s laws. You also agree that you will not condition services on a consumer’s agreement to provide consumer health data to you.
You also agree that you will be solely responsible for determining whether information constitutes consumer health data in the U.S. state or territory in which you are providing services. You also agree that you will be solely responsible for complying with any and all applicable laws, and further that GlossGenius shall have no liability for consumer health data collected, shared, and/or sold in contravention of this Section.
8. FEES AND PAYMENTS
Fees for the Subscription (“Subscription Fees”) and fees applicable to each transaction with Clients that you process using the GlossGenius Services (“Payment Processing Fees”) are set forth online (on our Site, in the App, or otherwise in your Account) and/or in a separate Subscription agreement entered into between you and GlossGenius. Subscription Fees and Payment Processing Fees are collectively referred to herein as “Fees.” You agree to: (i) pay GlossGenius the Subscription Fees and any other applicable fees for the Services, and (ii) allow GlossGenius to retain the applicable Payment Processing Fees. Unless otherwise stated, Subscription Fees will be collected and must be paid for in advance of each billing period. All Fees paid to GlossGenius are non-refundable and non-transferable, except as explicitly provided for in these Terms of Service.
By providing your credit card information or information about another payment method accepted by GlossGenius (“Payment Method”) for the GlossGenius Services, you agree that GlossGenius is authorized to charge the Payment Method for all applicable Subscription Fees when due and any other charges you may incur in connection with your use of the GlossGenius Services. Further, you authorize GlossGenius to confirm that the Payment Method is in good standing with a financial institution for the term of your use of the GlossGenius Services. You further authorize GlossGenius to obtain credit reports or run other background inquiries to assess a Professional’s eligibility to continue using the GlossGenius Services. All balances, fees, charges and payments collected or paid in connection with the GlossGenius Services are denominated in USD. You are responsible for paying and remitting to the applicable tax authority any sales, use or other similar taxes (if applicable, including VAT) applicable to (i) your purchase of the GlossGenius Services, and (ii) for the services provided to Clients.
Reserves
GlossGenius is not a bank or a money transmitter. GlossGenius may, in our sole discretion, hold reserves for all or a portion of the charges processed by us. In certain circumstances, we may require you to place funds in reserve or to impose conditions on the release of funds (defined as a “Reserve”). We reserve the right to impose a Reserve on a Professional’s Account if, for example, we determine that the risk of loss to GlossGenius or otherwise associated with your Account is higher than reasonably normal. This may include, by way of example and not limitation, if your activities increase the risk of loss to GlossGenius, you have violated these Terms of Service, or your Account has an elevated number of disputes. If we impose a Reserve on your Account, we will establish the terms of the Reserve and provide you with notice of the amount, timing, and conditions upon which the funds in the Reserve will be released to you. GlossGenius reserves the right to change or condition the terms of the Reserve based on our continuous assessment of the risk associated with your GlossGenius Account.
Billing Cycle
Your Subscription to the GlossGenius Services commences on the date that you sign up for a Subscription or on the date following the end of your free trial period. Unless otherwise stated at the time of sign up, each Subscription runs on a one-month cycle (“Subscription Period”) and will automatically renew monthly until you cancel your Subscription or delete your Account by following the appropriate procedures within the GlossGenius Services or notifying support@glossgenius.com, unless we have earlier terminated your Account. You will be billed on the first date of your Subscription (after your free trial period, if applicable), and each monthly anniversary thereafter. For example, if your Subscription begins on April 29th, it will renew on May 29th, June 29th, and so on. If your Subscription begins on a date that is not present in every billing cycle (e.g. the 31st), you will be billed on the last day of every month. GlossGenius may change the timing of our billing and we reserve the right to modify the schedule at which you will be billed. The amount billed to you each month may vary due to promotional offers and/or changing your Subscription plan and you acknowledge these variations and authorize GlossGenius to bill you as necessary.
Changes to Fees
GlossGenius reserves the right to adjust the Fees at any time and for any reason upon fourteen (14) days prior notice. Unless otherwise stated, any change to the Fees will be reflected on the next billing cycle after the change takes effect. To continue to use the GlossGenius Services, you must agree to any change in Fees. If you do not agree to any change in Fees, you must either cancel your Subscription or request Account deletion by following the appropriate procedures within the GlossGenius Services or notifying support@glossgenius.com.
Trials
GlossGenius may offer trial memberships for varying lengths which may include free or discounted access to the GlossGenius Services during such trial periods. GlossGenius reserves the right to end the availability of trial memberships at any time and for any reason. After the trial period, you acknowledge that your membership will automatically convert to a regular monthly Subscription for the then-applicable Fees unless cancelled by written notice as set forth below prior to the end of your trial period.
Subscription Cancellation or Account Deletion
You may cancel your Subscription or delete your Account at any time by following the appropriate procedures within the GlossGenius Services or notifying support@glossgenius.com. Cancellation of your Subscription means that you will no longer have access to your Account or your Account data, and we will cease billing you on your next billing cycle. If you cancel your subscription, you may reinstate your Account by contacting support@glossgenius.com. Deletion of your Account means that we will delete all of your Account data, except as required by applicable law, and we will cease billing you on your next billing cycle. You may not reinstate your Account after an Account deletion request as we will no longer have access to your Account data.
You must cancel your Subscription or delete your Account prior to your next billing cycle to avoid charges for the following billing cycle. If you do not cancel your Subscription or delete your Account prior to your next billing cycle, then you will be automatically charged for the subsequent month. All Subscription Fees are non-refundable. You acknowledge that you are ineligible for a pro-rated refund of any amount of the Subscription Fees paid for the then-current monthly subscription cycle at which you request cancellation of your Subscription or deletion of your Account. For any questions related to your individual billing cycle, please log onto your Account to view your billing cycle information or contact us at support@glossgenius.com.
9. PROPRIETARY RIGHTS
Except for any User Content (as defined in Section 11 below), as between you and us, we or our licensors, as applicable, own, solely and exclusively, all rights, title and interest in and to the GlossGenius Services, all the content (including, without limitation, text, photographs, graphics, audio, visual, and audiovisual content), code, data and materials thereon, the look and feel, design and organization of the GlossGenius Services, and the compilation of the content, code, data, and materials on the GlossGenius Services, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the GlossGenius Services does not grant to you ownership of any content, code, data, or materials you may access on or through the GlossGenius Services, nor does it not transfer to you or any third party any rights, title or interest in or to any GlossGenius or GlossGenius’s licensors intellectual property rights.
10. LIMITED LICENSE TO USE THE GLOSSGENIUS SERVICES
Subject to these Terms of Service, GlossGenius grants you a revocable, non-transferable, non-sublicensable, non-exclusive license to use the GlossGenius Services, including installation and use of an object code copy of the App on mobile devices owned or leased solely by you, in accordance with these Terms of Service. The rights granted to you in these Terms of Service are subject to the following restrictions: you shall not (i) sublicense, sell, rent, lease (including to provide time sharing, service bureau or similar services for any third party), loan, resell, transfer, assign or distribute the GlossGenius Services; (ii) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the GlossGenius Services; (iii) access the GlossGenius Services in order to build a similar or competitive service; (iv) imitate any part of the GlossGenius Services, including but not limited to the text, photographs, graphics, audio, visual, settings, controls, functionality, code, data, mechanisms, design, interactions or systems in place that the GlossGenius Services provide; (v) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the GlossGenius Services that (a) prevent or restrict the use or copying of any content accessible through the GlossGenius Services or (b) enforce limitations on use of the GlossGenius Services; (vi) delete the trademark, copyright, and other proprietary rights notices on the GlossGenius Services; or (vii) copy, reproduce, distribute, republish, download, display, post or transmit the GlossGenius Services in any form or by any means, except as expressly stated herein.
The foregoing limited license grant is not a sale of the GlossGenius Services or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the GlossGenius Services. Any future release, update, or other addition to functionality of the GlossGenius Services shall be subject to these Terms of Service.
You agree that any use of the GlossGenius Services other than on your own behalf as a Professional shall be subject to immediate termination of your Account. If you breach any of the foregoing provisions or have been found to be complicit in enabling another to do so, GlossGenius is entitled to seek monetary damages, injunctive relief and other remedies from you.
11. LICENSE TO USER CONTENT
You grant GlossGenius a non-exclusive, transferable, irrevocable, perpetual, sub-licensable, royalty-free, worldwide license to use, without any compensation to you, any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, links and other content or materials that you display, post, submit, or make available on or through (i) the GlossGenius Services (including on the website(s) you create) or (ii) any online or public platform, including on any social media platform, that either tags GlossGenius or otherwise identifies GlossGenius (all such content to be collectively referred to as “User Content”), for our lawful business purposes, including without limitation (a) to provide the GlossGenius Services; (b) in connection with the commercial or sponsored content displayed, promoted, or enhanced by us or our third-party partners, including in paid advertisements and on our websites or landing pages; and (c) in connection with GlossGenius’s social media accounts, including the reposting of your social media posts that tag or otherwise identify GlossGenius.
You represent and warrant that you either own or have permission to use all User Content (including your personal information and the personal information of others) and that such content does not infringe any third-party intellectual property rights. You further represent and warrant that you will not provide, upload, or in any way transmit any protected health information (PHI) to the GlossGenius Services. You further agree that you will not upload, transmit, or otherwise provide sensitive personal information or credit card information in the GlossGenius Services, in the “notes” section or otherwise. We may, but have no obligation to, monitor, edit or remove User Content from the GlossGenius Services or controlled websites or social media accounts that we determine violates any party’s intellectual property rights or these Terms of Service. You are solely responsible for any User Content you display, post, or submit and its legality and accuracy. We take no responsibility and assume no liability for any User Content posted by you or any third-party.
In addition, if you send certain specific submissions in response to a request from us (for example surveys or contest entries) or send creative ideas, suggestions, feedback, proposals, plans, or other materials, whether online, by email, by postal mail, via social media, or otherwise (collectively, “Comments”), you acknowledge and grant us an irrevocable, perpetual, royalty-free, transferable, sub-licensable right and license to use, distribute, and exploit such Comments and agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation to (i) maintain any Comments in confidence; (ii) pay compensation for any Comments; or (iii) respond to any Comments.
You may be exposed to information about GlossGenius or its products or services and ideas that may not have been disclosed to the public (collectively, the “Confidential Information”). You shall maintain the confidentiality of all Confidential Information disclosed to you, if any, in connection with the Services, and you shall hold Confidential Information in strict confidence. You shall refrain from disclosing or using our Confidential Information for any purpose other than as strictly required to use the Services and for purposes of providing confidential feedback to GlossGenius.
12. COMMUNICATIONS
By using the GlossGenius Services or where express consent as required by applicable law has been given, you expressly consent and agree to accept and receive communications, including via email, text message (e.g., SMS or MMS message, WhatsApp, iMessage), calls, and push notifications (collectively, “Communications”) from us to the cellular telephone number you provided to us. These Terms and the GlossGenius SMS Terms, govern the provision, receipt, and delivery of text messages by or on behalf of GlossGenius. By consenting to being contacted by GlossGenius, you understand and agree that you may receive Communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of GlossGenius, including but not limited to: operational and transactional Communications concerning your Account, use of the GlossGenius Services, and appointments; Communications with updates concerning new and existing features on the Site or App; promotional Communications, including Communications about special events, contests, sweepstakes, offers or surveys run by us or our third-party partners, and news concerning GlossGenius. Standard rates and text messaging charges may apply. You acknowledge that you are not required to consent to receive promotional text messages as a condition of using the GlossGenius Services. You may opt out of receiving promotional or marketing text messages or calls from GlossGenius at any time by contacting us or following the instructions contained in the message. You may not opt out of services-specific Communications if you wish to continue accessing the GlossGenius Services.
13. REPRESENTATIONS AND WARRANTIES
You represent and warrant that you are 18 years of age or older and have the legal right and capacity to enter into these Terms of Service in your jurisdiction. You represent and warrant that you will use the GlossGenius Services solely in compliance with all applicable laws and regulations, including without limitation the licensing requirements in your jurisdiction for providing cosmetology services or other regulated or licensed products or services, and surcharge and credit card network requirements in your jurisdiction.
You are solely responsible for your conduct and for any User Content that you display, post, submit, or make available on or through the GlossGenius Services. You represent and warrant that: (i) you own or have all rights, authorizations, or consents required to use all User Content displayed, posted or submitted by you on or through the GlossGenius Services as well as all content (such as client lists) that you request GlossGenius transfer to your Account, or otherwise have the right to grant the rights and licenses set forth in these Terms of Service; (ii) the display, posting, submission and use of your User Content on or through the GlossGenius Services and any request by you to transfer any content to your Account does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you display, post or submit on or through the GlossGenius Services or content you request GlossGenius transfer to your Account.
Without limiting any of its remedies available under law, GlossGenius will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material submitted through your Account, and will respond, appropriately, following the guidelines of the Online Copyright Infringement Liability Limitation Act and other applicable intellectual property laws. GlossGenius reserves the right to remove, hide, change, or reclaim any Accounts, services and products you offer, or your content that is in violation of the foregoing, which shall be determined in GlossGenius’s sole discretion.
You represent and warrant to us that you are and shall be, for so long as you access or use the GlossGenius Services or any Account, in compliance with (i) these Terms of Service; (ii) all laws and regulations applicable to the transmission of any email, text message (e.g., SMS or MMS message WhatsApp, iMessage), call, or push notification (collectively, “Communication(s)”) to any individual, such as a Client, including without limitation the Telephone Consumer Protection Act (TCPA) and its implementing regulations, the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM) and its implementing regulations, and all related federal and state laws, rules, and regulations (collectively, “Communications Laws”); and (iii) industry guidelines and third-party policies applicable to the transmission of Communications, including without limitation the CTIA Short Code Monitoring Program Handbook, the CTIA Messaging Principles and Best Practices, and wireless carrier guidelines and policies (collectively, “Industry Guidelines”).
In addition, if you provide us with the names or contact information of your Clients, including email addresses or phone numbers provided to GlossGenius by you or maintained in your Account or otherwise provided through your website hosted by GlossGenius, and you instruct us to transmit Communications to your Clients on your behalf, you represent and warrant that you have, in compliance with Communications Laws and Industry Guidelines, provided all required notices to and obtained all required consents, permissions, or opt-ins from such Clients.
14. APP STORE PROVIDER TERMS
To use any downloadable apps developed by us and provided to you directly or on our behalf, including all iOS apps bearing the “GlossGenius” logo and the GlossGenius Android app, you must have a mobile device that is compatible with it. We do not warrant that the App will be compatible with your mobile device. You acknowledge that we may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device, but that we have no obligation to do so. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such upgrades. Standard carrier data charges may apply to your use of the App.
Apple Inc., Alphabet Inc., or Microsoft Corporation will be a third-party beneficiary to these Terms of Service if you access the GlossGenius Services using applications developed for Apple iOS, Android, or Microsoft Windows-powered mobile devices, respectively. These third-party beneficiaries are not parties to this agreement and are not responsible for the provision or support of the GlossGenius Services in any manner. Your access to the GlossGenius Services using mobile devices is subject to terms set forth in the applicable third-party beneficiary’s terms of service. The additional terms and conditions applicable to you, as an end user of our App, available here, apply with respect to any App that we provide to you that is designed for use on an Apple iOS-powered mobile device.
15. THIRD-PARTY APPLICATIONS, SERVICES, AND LINKS
We utilize certain third-party applications and services to power certain portions of the GlossGenius Services or to permit you to access the GlossGenius Services. GlossGenius does not sponsor or endorse those third-party applications and services and has no obligation to support or maintain such third-party applications and services, and further GlossGenius expressly disclaims any representations and warranties, with respect to such third-party applications and services. GlossGenius does not monitor such third-party applications and services, nor does it have any control or input. You acknowledge and agree that we provide access to such third-party applications and services on an “as is” and “as available” basis without any warranties, representations, or conditions of any kind and without endorsement. We shall have no liability whatsoever arising from or relating to your use of third-party applications and services.
Your use of the GlossGenius Services is conditioned upon your acceptance and compliance with the terms and conditions applicable to such third-party applications and services. Your use of such third-party applications and services is at your own discretion and you shall ensure that you are familiar with and approve the terms on which such applications and services are provided, including without limitation:
Stripe to allow you to process credit card transactions with Clients. You must comply with their Connected Account Agreement.
Twilio to allow you to communicate with Clients via SMS messages. You must comply with their Terms, Acceptable Use Policy and Service and Country Specific Requirements.
EasyTeam to allow you to use time tracking and other employee management functionality within the GlossGenius Service. You must comply with their Terms.
Certain content available on the GlossGenius Services may include materials from third parties, including third-party links that may direct you to third-party websites that are not affiliated with GlossGenius. You acknowledge that GlossGenius is not responsible for examining or evaluating the content or accuracy of such third-party websites and GlossGenius does not provide any warranties or have any liability for any third-party websites or materials. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
Buy Now Pay Later
Buy Now Pay Later (“BNPL”) Services are supported and managed by third-party partners Affirm, Afterpay, and Klarna (“BNPL Partner(s)”), and if you choose to enable such Services, you are contracting with the applicable BNPL Partner(s), and eligibility determinations are governed by such BNPL Partner(s)’s terms of service, which are presented to you during signup. GlossGenius is not a party to any agreement between you and the BNPL Partner(s) and expressly disclaims all liability with respect to such agreements.
GlossGenius reserves the right to prohibit or restrict your ability to make transactions using BNPL Services at any time for any reason, without notice to you, or to request additional information from you before you can use or continue to use BNPL Services.
16. GIFT CARDS
If you use the GlossGenius Services to offer and sell gift cards to your Clients, you (and not GlossGenius) are the issuer and administrator of your gift cards. You are solely responsible for compliance with federal, state, and local laws that apply to your gift cards, including but not limited to notice and disclosure requirements, expiration dates and fees, refunds, cash back, unclaimed property or escheat requirements (such as tracking, reporting, and remittance of unclaimed property balances in all states), and customer service for your Clients and holders of gift cards.
Gift cards sold by you are gift cards that are only redeemable from you for your services and goods. GlossGenius does not assess a fee, or impose any limitations, on the redemption of a gift card to purchase services or goods from you. GlossGenius is not responsible for any lost or stolen gift cards. All gift cards and the funds associated with gift cards are your sole property. Any liability for the use or misuse of your gift cards, and any third-party claims arising from or relating to your gift cards, are your sole responsibility.
17. GENERATED OUTPUT
(a) Certain features of the Services use artificial intelligence tools and other technology (the “Generative Tools”) to generate text, audio, video, and other content (“Outputs”) in response to prompts and other inputs you submit to the Services (“Inputs”). Both Inputs and Outputs are considered User Content under these Terms of Service, and as between you and GlossGenius, you own all right, title, and interest in and to any Inputs and Outputs, to the extent protectable under applicable law. The Generative Tools may include artificial intelligence and other tools and technologies provided by third parties, and you acknowledge that your use of the Generative Tools may involve access to your Inputs and Outputs by GlossGenius and/or such third parties, and that such access may be pursuant to agreements you enter into with those third parties, rather than or in addition to these Terms of Service. You understand that due to the nature of the Generative Tools, Outputs you generate may not be unique, and it is possible that the Generative Tools may generate the same or similar Outputs for other users if the Inputs are similar. You acknowledge that the use of such Generative Tools may affect your ability to obtain or enforce any intellectual property rights in or to the Outputs.
(b) Although we are constantly striving to improve the Services and the quality and accuracy of Outputs, you acknowledge that artificial intelligence and machine learning technologies are rapidly evolving and may produce Outputs that are inaccurate, unreliable, inappropriate, infringing, or otherwise unsuitable or that do not meet your expectations.
(c) You agree not to use the Generative Tools or the resulting Outputs in a manner that may infringe upon or violate the rights of any third party or violate any applicable laws, rules, or regulations, and you acknowledge and agree that (1) you are solely responsible for vetting and evaluating the accuracy, appropriateness, legality, and suitability for your use of any Outputs before using, including evaluating whether such use will infringe upon or violate the rights of others; and (2) you assume all risk associated with your use of the Generative Tools and its resulting Outputs and that GlossGenius will have no liability for such use.
(d) You also acknowledge and agree that we and any third parties who provide any artificial intelligence technologies used to provide the Generative Tools may access and use your Inputs, Outputs and other User Content in order to train, improve, and develop such technologies and the Services and for other research and development purposes.
18. AGE REQUIREMENTS
We do not knowingly permit children under the age of 18 to maintain Accounts without parental consent. GlossGenius does not knowingly collect or solicit personal information about children under 18, except with their parent’s consent.
Additionally, the GlossGenius Services are not intended for use by minors under the age of 13. We do not collect personally identifiable information from any person we know is a child under the age of 13. Should we be alerted that we have inadvertently collected personally identifiable information from a child under the age of 13, we will take steps to immediately delete such information.
19. TERMINATION
We may terminate, change, suspend or discontinue any aspect of the GlossGenius Services (including, without limitation, content, features, or hours of availability), at any time and for any reason. We also reserve the right to transfer our business and the GlossGenius Services to a third party. We may restrict, suspend or terminate your Account or your access to the GlossGenius Services if we believe you are in breach of these Terms of Service or applicable law, or for any other reason permitted by law without notice or liability.
If we have terminated your Account or have otherwise canceled your access to the GlossGenius Services, except where cancellation of your Subscription or deletion of your Account is initiated solely by you, you may not return to the GlossGenius Services for any reason or in any manner without GlossGenius’s prior written consent, including by using the GlossGenius Services under a new username or identity. In the event that you do return, or attempt to return, to the GlossGenius Services after we have terminated your Account, you will be deemed to have breached these Terms of Service, and we reserve the rights to obtain reimbursement from you for any costs and expenses incurred to enforce these Terms of Service and otherwise to pursue all rights and remedies available at law or in equity with respect to such breach.
If your Account is terminated by GlossGenius or deleted by you, or if you cancel your Subscription, note that the following will occur: any pending transactions will be canceled, any funds that are being held for you in custody at the time of the termination, deletion, or cancellation, less any Fees, will be paid out according to your payout schedule, assuming all payout-related requirements have been fulfilled. Your funds may be held if there is a pending investigation at the time of your Account termination or deletion or Subscription cancellation. If the investigation yields that you are entitled to some or all of the funds in dispute, we will promptly release those funds to you.
Additionally, if your Account is terminated by GlossGenius or deleted by you, or if you cancel your Subscription, for any reason or for no reason at all, you agree that (i) you will be bound by these Terms of Service to the extent such obligations survive termination or deletion of your Account or cancellation of your Subscription; (ii) you will immediately stop using the GlossGenius Services; (iii) any licenses to any of the GlossGenius Services granted to you under these Terms of Service shall end; (iv) your access to third-party platforms via the GlossGenius Services will be canceled; and (v) GlossGenius may retain all Account data (a) as required by law and/or (b) in its ordinary course of business as maintained in its data retention and backup systems; provided that GlossGenius may only use Account data pursuant to its Privacy Policy and in accordance with applicable laws. Notwithstanding the foregoing, if your Account is deleted by you in accordance with these Terms of Service, then GlossGenius will process deletion of your Account data, except for any Account data that we are legally permitted to retain, such as tax documents. GlossGenius is not liable for any compensation, reimbursement or damages in connection with the termination or deletion of your Account, the cancellation of your Subscription, or any termination of access to a third-party platform via the GlossGenius Services. Termination or deletion of your Account or cancellation of your Subscription does not relieve you of any obligations to pay any Fees, debts or costs accrued in connection with use of the GlossGenius Services.
20. INDEMNIFICATION
By using the GlossGenius Services you acknowledge and agree that, in the event that it becomes necessary or advisable for us to defend ourselves, in a court of law or otherwise, we may rely on your representations and warranties contained herein. To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless GlossGenius and our subsidiaries and affiliates, and each of our respective directors, officers, partners, employees, and agents (individually and collectively, the “GlossGenius Parties”) from and against any and all losses, claims, liabilities, demands, damages, fines, penalties, costs, and expenses (“Claims”), arising out of or related to (i) your access to or use of the GlossGenius Services or any Account; (ii) your User Content or Comments; (iii) your violation, infringement, or misappropriation of any rights of another (including intellectual property rights or privacy rights); (iv) your violation of these Terms of Service; or (v) your conduct in connection with the GlossGenius Services or any Account. You will promptly notify the GlossGenius Parties of any third-party Claims, cooperate with the GlossGenius Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ fees). The GlossGenius Parties reserve the right, in their sole discretion, to assume the exclusive defense, control, or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and GlossGenius or the other GlossGenius Parties.
21. DISCLAIMER OF WARRANTIES
THE GLOSSGENIUS SERVICES, INCLUDING, WITHOUT LIMITATION, ALL FEATURES, CONTENT, FUNCTIONS AND MATERIALS PROVIDED THROUGH THE SITE AND APP, ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, DISPLAYABILITY, ACCURACY, USEFULNESS, CORRECTNESS, PRECISION, THOROUGHNESS, COMPLETENESS OF CONTENT OR INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED.
WE DO NOT WARRANT THAT THE GLOSSGENIUS SERVICES, CONTENT, FUNCTIONS OR MATERIALS PROVIDED THROUGH THE SITE OR APP WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. GLOSSGENIUS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SUITABILITY, RELIABILITY, TIMING, DURABILITY, LEGALITY, OR ANY OTHER ASPECT OF THE SERVICES OFFERED OR PROVIDED BY PROFESSIONALS OR REQUESTED BY CLIENTS THROUGH USE OF THE GLOSSGENIUS SERVICES WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS OR ABOUT THE ACCREDITATION, REGISTRATION OR LICENSE OF ANY PROFESSIONAL. WE MAKE NO WARRANTY THAT THE GLOSSGENIUS SERVICES WILL MEET A PROFESSIONAL’S REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE GLOSSGENIUS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. GLOSSGENIUS ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR EQUIPMENT ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING ON THE SITE OR APP OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, INFORMATION, TEXT, IMAGES, OR OTHER CONTENT FROM THE SITE OR APP.
WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THE SITE OR APP AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE WILL NOT BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE OR APP. UNDER NO CIRCUMSTANCES DOES YOUR USE OF THE GLOSSGENIUS SERVICES FORM ANY RELATIONSHIP (OTHER THAN THE CONTRACTUAL RELATIONSHIP CREATED BY THESE TERMS OF SERVICE), WHETHER IMPLIED OR EXPRESS, WITH GLOSSGENIUS. GLOSSGENIUS HEREBY DISCLAIMS ANY SUCH RELATIONSHIP AND ANY LIABILITY ARISING AS A RESULT OF YOUR USE OF ANY CONTENT CONTAINED ON THE SITE OR APP.
IT IS POSSIBLE FOR OTHER USERS OF THE GLOSSGENIUS SERVICES TO OBTAIN PERSONAL INFORMATION ABOUT YOU DUE TO YOUR USE OF THE GLOSSGENIUS SERVICES, AND THAT THE RECIPIENT MAY USE SUCH INFORMATION TO HARASS OR INJURE YOU. WE ARE NOT RESPONSIBLE FOR THE USE BY OTHER USERS OF THE GLOSSGENIUS SERVICES OF ANY PERSONAL INFORMATION THAT YOU DISCLOSE THROUGH THE GLOSSGENIUS SERVICES.
22. LIMITATION OF LIABILITY
IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL GLOSSGENIUS, ANY OF ITS AFFILIATES OR REPRESENTATIVES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE GLOSSGENIUS SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR LOST DATA. 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 YOU. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE OR APP. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OF SERVICE OR YOUR USE OF THE GLOSSGENIUS SERVICES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO GLOSSGENIUS FOR YOUR USE OF THE GLOSSGENIUS SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IF YOU ARE DISSATISFIED WITH THE GLOSSGENIUS SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE GLOSSGENIUS SERVICES.
WITHOUT LIMITING THE FOREGOING, AND FOR THE AVOIDANCE OF DOUBT, GLOSSGENIUS’S TOTAL AGGREGATE LIABILITY TO ANY END CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE) ARISING FROM OR RELATED TO THESE TERMS OF SERVICE OR ANY END CLIENT’S USE OF OR INTERACTION WITH THE GLOSSGENIUS SERVICE SHALL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT, IF ANY, PAID BY SUCH END CLIENT DIRECTLY TO GLOSSGENIUS (AND NOT TO A PROFESSIONAL) IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE; OR (B) ONE HUNDRED DOLLARS ($100.00).
GLOSSGENIUS EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN PROFESSIONALS AND CLIENTS RELATED TO OR ARISING FROM USE OF THE GLOSSGENIUS SERVICES. BECAUSE GLOSSGENIUS IS NOT INVOLVED IN THE PROVISION OF ANY SERVICES BY THE PROFESSIONAL, YOU HEREBY RELEASE AND FOREVER DISCHARGE THE PROTECTED ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER PROFESSIONAL OR CLIENT, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF GLOSSGENIUS SERVICES OR OTHERWISE.
YOU ACKNOWLEDGE AND AGREE THAT GLOSSGENIUS HAS SET ITS FEES AND ENTERED INTO THIS TERMS OF SERVICE IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS) AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
23. BINDING ARBITRATION; JURY TRIAL WAIVER; CLASS ACTION AND REPRESENTATIVE ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL, AND YOUR RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION AGAINST GLOSSGENIUS.
Arbitration — Professionals and Registered Users.
Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you (as a Professional, Account Owner, or other registered subscriber to the GlossGenius Service) and GlossGenius arising out of or relating in any way to these Terms of Service, including your use of the GlossGenius Services, shall be fully resolved by binding arbitration as described in this Section. This agreement to arbitrate is intended to be interpreted broadly. YOU AGREE THAT BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND GLOSSGENIUS ARE EACH WAIVING THE RIGHT TO SUE IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND GLOSSGENIUS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OWN INDIVIDUAL CAPACITY, AND NOT AS A REPRESENTATIVE PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED OR PUTATIVE CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; YOU AND GLOSSGENIUS AGREE THAT CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. The arbitration will be governed by the then applicable Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this Section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and GlossGenius must abide by the following rules: (i) the arbitration shall be conducted solely based on written submissions; and (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in New York County, New York. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New York County, New York. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in New York County, New York. You agree to submit to the personal and exclusive jurisdiction of such courts.
End Client Disputes — Mandatory Binding Arbitration.
(a) Scope. Except as provided in subsection (c) below, any dispute, claim, or controversy between an End Client and GlossGenius arising out of or relating to: (i) these Terms of Service; (ii) any booking, purchase, or transaction facilitated through the GlossGenius Service; (iii) the GlossGenius Service or any feature thereof; (iv) GlossGenius’s Privacy Policy; or (v) the relationship between any End Client and GlossGenius (collectively, “End Client Disputes”) shall be resolved exclusively by final and binding individual arbitration administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (available at adr.org/consumer), as modified by these Terms of Service. This agreement to arbitrate is intended to be interpreted broadly and shall apply to all End Client Disputes regardless of whether they sound in contract, tort, statute, or any other legal theory.
(b) Informal Resolution Required. Before initiating arbitration, each End Client must first deliver a written “Notice of Dispute” to GlossGenius at legal@glossgenius.com that contains: (i) the nature and basis of the claim; (ii) the specific relief sought; (iii) the End Client’s name and email address and, if available, booking confirmation number; and (iv) the End Client’s signature. GlossGenius will similarly provide written notice before commencing any arbitration against an End Client. The parties shall use good faith efforts to resolve the dispute informally for at least 30 days after receipt of the Notice of Dispute before either party may initiate arbitration. The parties may agree to extend the informal resolution period.
(c) Exceptions. The following End Client claims are not subject to mandatory arbitration: (i) claims that qualify for small claims court, provided the claim remains in that forum and is pursued solely on an individual basis; (ii) applications for temporary restraining orders or preliminary injunctions to prevent irreparable harm pending the outcome of arbitration; and (iii) claims for infringement or misappropriation of intellectual property rights.
(d) Arbitration Procedures. Arbitration shall be conducted before a single neutral arbitrator. For claims not exceeding $25,000: arbitration shall be conducted solely by written submissions, with no in-person hearing required, unless the arbitrator determines a hearing is necessary. For claims exceeding $25,000 requiring a hearing: the hearing shall take place in the county in which the End Client resides, or remotely by telephone or video conference at the End Client’s election. The arbitrator may award any remedy available in a court of competent jurisdiction on an individual basis but may not award any relief benefiting anyone other than the End Client party to the proceeding. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
(e) Arbitration Fees — End Clients. For End Client claims not exceeding $25,000, GlossGenius will pay all AAA filing fees, administrative fees, and arbitrator compensation, except as set forth in subsection (g) below. For End Client claims exceeding $25,000, AAA fee-sharing rules shall apply, except as set forth in subsection (g) below. If the arbitrator determines that an End Client’s claim was frivolous or brought for an improper purpose (within the meaning of AAA Consumer Rule R-44(d)(ii)), GlossGenius may seek reimbursement of its arbitration costs from the End Client.
(f) CLASS ACTION AND REPRESENTATIVE ACTION WAIVER — END CLIENTS.
EACH END CLIENT AND GLOSSGENIUS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLAIMANT, OR CLASS MEMBER IN ANY PURPORTED OR PUTATIVE CLASS ACTION, COLLECTIVE ACTION, CLASS-WIDE ARBITRATION, REPRESENTATIVE ACTION, MULTI-PARTY ARBITRATION, CONSOLIDATED ARBITRATION, OR ANY OTHER PROCEEDING IN WHICH ANY PERSON ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY (COLLECTIVELY, “CLASS CLAIMS”).
THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL END CLIENT SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE THAT END CLIENT’S INDIVIDUAL RELIEF. ANY AWARD SHALL NOT AFFECT ANY OTHER END CLIENT, EXCEPT AS SET FORTH IN SUBSECTION (G) BELOW.
IF ANY PORTION OF THIS CLASS ACTION WAIVER IS FOUND TO BE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM BY A COURT OF COMPETENT JURISDICTION, THEN (AND ONLY THEN): (I) THAT SPECIFIC CLAIM SHALL PROCEED IN COURT ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS ONLY; AND (II) ALL REMAINING CLAIMS SHALL CONTINUE TO BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS SET FORTH IN THIS SECTION. THE UNENFORCEABILITY OF THE CLASS ACTION WAIVER AS TO ONE CLAIM SHALL NOT AFFECT ITS ENFORCEABILITY AS TO ANY OTHER CLAIM, AND SHALL NOT AFFECT THE ENFORCEABILITY OF THE ARBITRATION AGREEMENT IN THIS SECTION.
(g) Mass Filing Procedures. If 25 or more substantially similar arbitration demands arising from the same or similar facts or seeking substantially similar relief within any 180-day period are filed by End Clients or by GlossGenius (a “Mass Filing”), the following procedures shall apply in lieu of ordinary AAA procedures: (i) filing fees shall be determined and payable in accordance with AAA’s Consumer Mass Arbitration and Mediation Fee Schedule; (ii) AAA shall randomly select 10 demands to proceed as “Bellwether Cases” to be arbitrated to conclusion; (iii) all remaining Mass Filing demands shall be stayed and their filing fees and other fees and costs tolled pending completion of the Bellwether Cases; (iv) outcomes of Bellwether Cases shall not bind non-bellwether End Clients but shall inform global settlement discussions; (v) following completion of the Bellwether Cases, the parties shall meet and confer for 90 days regarding global resolution, unless the parties mutually agree that they have reached an impasse regarding global resolution; and (vi) if no global resolution is reached, AAA shall select an additional batch of 10 demands for arbitration, repeating the process described in this paragraph until all demands are resolved. Nothing herein prevents any individual End Client from pursuing an individual, non-represntative claim in small claims court for which they otherwise qualify. If GlossGenius or any End Party reasonably believes that the provisions of this subparagraph (g) are likely to apply, the time to pay any filing fees shall be tolled until AAA determines whether the terms of this subparagraph (g) apply.
(h) Opt-Out Right — End Clients. An End Client may opt out of the arbitration agreement in this Section 23 by sending written notice to legal@glossgenius.com within 30 days of first accepting these Terms of Service (the “Opt-Out Deadline”). The notice must include: (i) the End Client’s full name; (ii) the End Client’s email address and, if available, booking confirmation number; and (iii) a clear statement that the End Client elects to opt out of arbitration. Timely opting out means that End Client Disputes will be resolved in court subject to the terms of this Section, including subsection (i) (governing law and venue). The class action and representative action waiver in subsection (f) remains in full force and effect regardless of whether an End Client opts out of arbitration.
(i) Governing Law; Venue for Non-Arbitrated End Client Claims. These Terms of Service and all End Client Disputes shall be governed by the laws of the State of New York, without regard to its conflict of law principles. For any End Client claims not subject to arbitration under subsections (c) or (h), each End Client consents to the exclusive jurisdiction and venue of the state and federal courts located in New York County, New York; provided, however, that GlossGenius will not enforce this venue clause against End Clients who bring claims in a small claims court with proper jurisdiction over such claims.
(j) Jury Trial Waiver — End Clients. FOR ANY END CLIENT DISPUTE THAT IS NOT RESOLVED THROUGH ARBITRATION, EACH END CLIENT AND GLOSSGENIUS HEREBY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(k) Survival. The arbitration agreement, class action waiver, and jury trial waiver provisions of this Section 23 shall survive the termination or expiration of these Terms of Service and shall continue to apply to any dispute arising from events that occurred prior to such termination.
24. ENTIRE AGREEMENT
These Terms of Service, which incorporate the Privacy Policy, Data Processing Addendum, Acceptable Use Policy, Payments Terms, Referral Program Policy, and SMS Terms constitute the entire agreement between you and us regarding the use of the GlossGenius Services.
25. MISCELLANEOUS
The Terms of Service, and the relationship between you and us, shall be governed by the laws of the State of New York, United States of America, without regard to conflict of law provisions. Our failure to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Service will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to GlossGenius is that of an independent contractor, and neither party is an agent or partner of the other. These Terms of Service, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without GlossGenius’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. These Terms of Service may be assigned, subcontracted, delegated or otherwise transferred by GlossGenius in its sole discretion. These Terms of Service shall be binding upon any permitted assignees.
26. COPYRIGHT INFRINGEMENT CLAIMS
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the GlossGenius Services infringe your copyright, you (or your agent) may send to GlossGenius a written notice by mail or e-mail, requesting that GlossGenius remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to GlossGenius a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to the Designated Agent as follows:
By e-mail to Designated Agent at copyrightagent@glossgenius.com or by mail to GlossGenius, Inc., 169 Madison Avenue, Suite 11713, New York, NY 10016.
The Designated Agent’s phone number is 888-979-7864.
QUESTIONS
If you have questions about these Terms of Service, please email us at support@glossgenius.com.