USER AGREEMENT

LAST UPDATED ON October 1, 2009

These terms of this User Agreement (as herein defined) apply to Your use of the website located at Vagaro.com (the "Site" ). By accessing, browsing, crawling, scraping or in any way using the Site, You agree to the terms set forth in this User Agreement, the Vagaro Privacy Policy posted here [CODE HYPERLINK], and all other guidelines or policies referenced herein (collectively, the "User Agreement" ).

PLEASE READ THIS USER AGREEMENT CAREFULLY. YOUR USE OF THE SITE CONSTITUTES YOUR ACCEPTANCE OF THIS USER AGREEMENT. DO NOT USE THE SITE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THIS USER AGREEMENT.

1.DEFINITIONS.

  • (a)

    "User" is someone who accesses, browses, crawls, scrapes or in any way uses the Site. The terms "You",  "Your" and "Yourself" refer exclusively to You, as a User of the Site. The terms "We", "Us", "Our", and "Vagaro" refer exclusively to Vagaro, LLC, a California limited liability company.

  • (b)

    "Content" means text, images, photos, audio, video and all other forms of data or communication."Your Content" means Content that You submit or transmit to or through the Site, such as ratings, reviews, compliments, invitations and information that You display as part of Your account profile. "User Content" means Content that Users submit or transmit to or through the Site. "Vagaro Content" means Content that We create and make available on the Site. "Third Party Content" means Content that is made available on the Site by parties other than Vagaro or its Users, such as data providers who license data to Vagaro for use on the Site. "Site Content" means all of the Content that is made available on the Site, including Your Content, User Content, Third Party Content, and Vagaro Content.

  • 2.ELIGIBILITY

    • You must be at least eighteen (18) years old and a resident of the United States in order to use this Site. All other persons are prohibited from using the Site. If You use the Site on behalf of a company, entity or organization, You represent that You are an authorized representative of such company, entity or organization with the authority to bind it to the this User Agreement (which authority You hereby exercise). To the extent that You do not meet the eligibility requirements as set forth herein, Vagaro may, at its sole discretion, elect to terminate Your account.

    3.CHANGES TO THE USER AGREEMENT.

    • We may modify this User Agreement from time to time in Our sole discretion and without advance notice. When changes are made, We will notify You by making the revised version available on the Site and will indicate on the Site the date on which revisions were last made. You should revisit this User Agreement on a regular basis as revised versions will be binding on You. Any such modification will be effective upon Our posting of new User Agreement.  Your continued use of the Site after any posted modification to this User Agreement indicates Your assent to the modified and/or restated User Agreement.

    4.USER ACCOUNTS.

    • To use some of the features on the Site, You may be required to create an account and provide information about Yourself to Us. You are y responsible for maintaining the confidentiality of Your account password. You are also exclusively responsible for all activities that occur in connection with Your account. You agree to notify Us immediately of any unauthorized use of Your account. We reserve the right to close Your account at any time for any or no reason. There are two types of accounts:
    • (a)

      "Personal Account " is an account for Your personal, non-commercial use only. In creating a Personal Account, We ask that You provide complete and accurate information about Yourself to bolster Your credibility as a contributor to the Site. You may not impersonate or provide an email address other than Your own, or create multiple Personal Accounts.

    • (b)

      "Business Account” is an account to be used solely for the purpose of representing Your business on the Site. In creating or updating a Business Account, You must be an authorized representative of the business in question, and You must provide complete and accurate information about Yourself and the business You represent. You may not provide an email address that is not Your own or create multiple Business Accounts for the same business. Additional terms associated with a Business Account are further set forth in that certain “Vagaro Service Agreement”, which, additional terms, applicable to all Business Accounts, are incorporated herein by reference.

    5.USE OF THE SITE.

    • We grant You permission to use the Site subject to the restrictions in this User Agreement. In using the Site, You may be exposed to Content that is offensive, indecent, untruthful, inaccurate, objectionable, defamatory or otherwise inappropriate. Vagaro does not endorse such Content and as part and parcel of this User Agreement, specifically precludes all Users from submitting or posting such to the Site.

    6.USE RESTRICTIONS.

    YOU AGREE THAT YOU WILL NOT, AND WILL NOT ASSIST OR ENABLE OTHERS TO:

    • (a)

      use the Site to threaten, stalk, defraud, incite, harass, or advocate the harassment of another person, or otherwise interfere with another User’s use of the Site;

    • (b)

      use the Site to submit or transmit spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not;

    • (c)

      use the Site for promotional or commercial purposes, except as expressly allowed in writing by Vagaro;

    • (d)

      use the Site in a manner that may create a conflict of interest, such as trading reviews with other business owners or writing or soliciting shill reviews;

    • (e)

      use the Site for keyword spamming or to otherwise attempt to manipulate natural search results;

    • (f)

      use the Site to promote bigotry or discrimination against any persons or other Users for any reason;

    • (g)

      use the Site to violate any third-party rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right of any person or entity;

    • (h)

      use the Site to submit or transmit any nude images of any kind, pornography or illegal content;

    • (i)

      use the Site to solicit personal information from minors or to harm or threaten to cause harm to minors;

    • (j)

      use the Site in violation of this User Agreement or any applicable law;

    • (k)

      modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site, or Site Content (other than Your Content) or other User Content, except as expressly authorized by Vagaro;

    • (l)

      reverse engineer any portion of the Site, except as may be permitted under the law;

    • (m)

      remove or modify any copyright, trademark or other proprietary rights notice on the Site or on any materials printed or copied off of the Site;

    • (n)

      record, process or mine information about other Users;

    • (o)

      use any robot, spider, site search/retrieval application or other automated device, process or means to access, retrieve, scrape or index the Site or any Site Content;

    • (p)

      access, retrieve or index the Site to for purposes of constructing or populating a search-able database of business reviews;

    • (q)

      reformat or frame any portion of the Site;

    • (r)

      take any action that imposes, or may impose in Our sole discretion, an unreasonable or disproportionately large load on Vagaro’s computer systems;

    • (s)

      attempt to gain unauthorized access to the Site, User accounts, computer systems or networks connected to the Site through hacking, password mining or any other means; use the Site or any Site Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, "Viruses"); use any device, software or routine that interferes with the proper working of the Site, or otherwise attempt to interfere with the proper working of the Site; make excessive traffic demands; use the Site to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Site or Site Content; remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site; and make any untruthful or defamatory statements.

    7.PERMISSION TO USE YOUR CONTENT.

    • Vagaro will never sell it's users contact information nor allow anyone to advertise to other businesses clients other than their own. We may use Your Content in a number of different ways, including displaying it on the Site, reformatting it, incorporating it into other works, creating derivative works from it, promoting it, distributing it and allowing others to do the same in connection with their own websites and media platforms (collectively, "Other Media"). As such, You grant Us an irrevocable license to use Your Content for any purpose. You also irrevocably grant the Site’s Users and the Users of any Other Media the right to access Your Content in connection with their use of the Site and any Other Media. Finally, You irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution with respect to Your Content.

    8.RESPONSIBILITY FOR YOUR CONTENT.

    • You alone are responsible for Your Content. You assume all risks associated with Your Content, including, but not limited to, anyone’s reliance on its accuracy, completeness or usefulness, or any disclosure by You of information in Your Content that makes You personally identifiable. You represent that You own, or have the necessary permissions to use, and authorize the use of, Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Vagaro. You may expose Yourself to liability if, for example, Your Content violates any third-party right, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right; contains material that is false, intentionally misleading, or defamatory; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.

    9.USE OF CONTENT.

    • We may remove or reinstate User Content from time to time at Our sole discretion. For example, We may remove a review if We believe it violates this User Agreement. We have no obligation to retain or provide You with copies of Your Content, nor do We make any guarantees or representations concerning any confidentiality with respect to Your Content.  Vagaro and its licensees may display advertisements and other information adjacent to or included with Your Content on the Site and Other Media. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to You.

    10.APPOINTMENT POLICY

    • As part of the services offered by the Site, Vagaro permits its Users to make appointments with certain businesses.  In the event that a User elects to reserve an appointment with a business on the Site, the User covenants and agrees that he/she/it will arrive at the designated appointment.  In the event that the User is unable to make the appointment after scheduling such, he/she/it agrees to cancel such appointment not less than twenty-four (24) hours in advance of the originally scheduled time.  You acknowledge and agree that Vagaro may suspend or terminate Your account in the event that You fail to appear at any scheduled appointment.  You represent, covenant and agree further that You will not make any appointments at which You do not intend to appear and You covenant and agree further to refrain from any and all conduct which may be adverse to the interest of each of the businesses featured on the Site.  Each User covenants and agrees to defend, indemnify and hold harmless Vagaro from and against any and all conduct which may be adverse to any of the businesses soliciting appointments on the Site.

    11.Copyright Dispute Policy.

    We have adopted the following policies and procedures with regard and copyright infringement in accordance with Title 17, United States Code, Section 512(c), which is part of the Digital Millennium Copyright Act ("DMCA"). The address of Vagaro’s Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is provided at the bottom of this section. It is Vagaro’s policy to (i) respond to notices of alleged copyright infringement that comply with the DMCA; and (ii) terminate the accounts of Users determined by Vagaro to be a "repeat infringer" as referenced in the DMCA.

    • (a)

      Procedure for Reporting Copyright Infringements. If You are a copyright owner or agent thereof, and believe that Your copyright is being infringed in connection with the Site, please send a written notification to the Designated Agent detailing the alleged infringement. Your written notification must include:

    • (i)

      Identification of the copyrighted work that You claim has been infringed;

    • (ii)

      Identification of the Content on the Site that allegedly infringes upon the copyrighted work at issue, and information reasonably sufficient to permit Vagaro to locate such Content;

    • (iii)

      A statement by You that You have a good faith belief that the use of the Content identified in Your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;

    • (iv)

      A statement by You that You attest, under penalty of perjury, that the information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf; and

    • (v)

      Your physical or electronic signature, together with Your contact information (address, telephone number and, if available, email address).

    • Please note that Vagaro may, at its sole discretion, send a copy of such notices to third parties for publication. Please note that You may be subject to liability under Section 512(f) of the DMCA if You materially misrepresent that content on the Site infringes Your copyright.

    • (b)

      Procedure to Supply a Counter-Notice to the Designated Agent. If You believe that Content has been mistakenly removed from the Site pursuant to this Copyright Dispute Policy, You may send a written counter-notice to the Designated Agent including the following:

    • (i)

      Identification of the Content that was removed, and the location on the Site where it would have been found prior to its removal;

    • (ii)

      A statement under penalty of perjury that You have a good faith belief that the Content was removed as a result of a mistake or misidentification;

    • (iii)

      A statement that You consent to the jurisdiction of the Federal District Court for the judicial district in which Your address is located, or if Your address is located outside the United States, for any judicial district in which Vagaro is located, and that You will accept service of process from the person who provided notification under 512(c)(1)(C) or an agent of such person; and

    • (iv)

      Your physical or electronic signature, together with Your contact information (address, telephone number and, if available, email address).

    • (c)

      Address for Designated Agent. Please contact the Designated Agent at the following address:

    VAGARO, LLC

    Attn: Fred Helou
    3090 Independence Drive suite 200
    Livermore, CA 94551
    Phone: 8009190157

    The Designated Agent should only be contacted in connection with the issues raised in this Section.

    12.SITE AVAILABILITY.

    • We reserve the right to modify, update, or discontinue the Site at Our sole discretion, at any time, for any or no reason, and without notice or liability.

    UNAUTHORIZED ACCESS.

    • We reserve the right to exercise whatever lawful means We deem necessary in order to prevent unauthorized access to or use of the Site, including, but not limited to, technological barriers, IP mapping and contacting Your Internet Service Provider (ISP) regarding such unauthorized use.

    14. INVESTIGATIONS.

    • We are under no obligation to monitor the Site or Site Content. However, We reserve the right to investigate possible violations of the User Agreement, block Users from the Site, and refer matters to law enforcement authorities for further investigation. We may disclose information to third parties, including Your Content, in accordance with the Privacy Policy.

    15. TERMINATION.

    • We may terminate or suspend Your account or ability to use the Site, in whole or in part, at Our sole discretion, for any or no reason, and without notice or liability of any kind. For example, We may terminate or suspend Your account or ability to use the Site if You breach this User Agreement or are suspected of involvement in illegal activity. Any such termination or suspension could prevent You from accessing Your account, the Site, Your Content, Site Content or any other related information.  You may terminate this User Agreement at any time by closing Your account, discontinuing Your use of any and all parts of the Site. If You close Your account, We will use commercially reasonable efforts to stop displaying Your account profile on the Site, but may continue to display Your Content.  In the event of any termination, this User Agreement will continue in full force and effect, including Our right to use Your Content.

    16.OWNERSHIP.

    • We own the Vagaro Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate User review ratings and all other elements and components of the Site excluding User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights throughout the world (the “IP Rights” associated with the Vagaro Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, You may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Vagaro Content in whole or in part except as expressly authorized by Us. Except as expressly and unambiguously provided herein, We do not grant You any express or implied rights, and all rights in and to the Site and the Vagaro Content are retained by Us.

    17.WARRANTIES, DISCLAIMERS, AND LIMITATIONS OF LIABILITY.

    THE SITE AND ALL SITE CONTENT IS MADE AVAILABLE TO YOU ON AN “ AS IS ” BASIS. VAGARO MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO (1) THE OPERATION AND FUNCTIONALITY OF THE SITE, (2) THE ACCURACY, INTEGRITY, COMPLETENESS, QUALITY, LEGALITY, USEFULNESS, SAFETY AND IP RIGHTS OF ANY OF THE SITE CONTENT, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF BUSINESS REVIEWS AND BUSINESS INFORMATION LISTED ON THE SITE AND/OR (3) THE PRODUCTS AND SERVICES ASSOCIATED WITH THE SITE OR SITE CONTENT, INCLUDING BUT NOT LIMITED TO THE PRODUCTS AND SERVICES SOLD BY BUSINESSES LISTED ON THE SITE. VAGARO FURTHER DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM VAGARO OR THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR CONDITION NOT EXPRESSLY STATED HEREIN.  VAGARO DISCLAIMS ALL LIABILITY FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE OR CONSEQUENTIAL DAMAGES, (B) LOSS OF PROFITS, (C) BUSINESS INTERRUPTION, (D) LOSS OF OR DAMAGE TO REPUTATION OF VAGARO OR ANY THIRD PARTY, OR (E) LOSS OF INFORMATION OR DATA.  VAGARO FURTHER DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR USE OF THE SITE AND SITE CONTENT. YOUR USE OF THE SITE AND SITE CONTENT IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO, ANY LOSS OF DATA OR DAMAGE TO YOUR COMPUTER(S) OR NETWORKS FROM VIRUSES THAT MAY BE DOWNLOADED TO YOUR COMPUTER IN THE COURSE OF USING THE SITE. VAGARO ALSO DISCLAIMS ANY AND ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR COMMUNICATIONS OR DEALINGS WITH ANY OF THE BUSINESSES, ADVERTISERS OR USERS ON THE SITE. YOUR COMMUNICATIONS OR DEALINGS WITH SUCH BUSINESSES, ADVERTISERS AND USERS ARE SOLELY BETWEEN YOU AND THEM, THOUGH VAGARO RESERVES THE RIGHT TO MONITOR DISPUTES BETWEEN YOU AND THEM.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU RESIDE IN SUCH A JURISDICTION, THE ABOVE LIMITATIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

    VAGARO’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CLAIMS, DAMAGES, INJURIES OR CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR FOR ANY OTHER REASON), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO VAGARO IN CONNECTION WITH THE SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (II) US $1.00.

    18.INDEMNITY.

    You agree to defend, indemnify and hold harmless Vagaro, its members, managers, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them, including costs, liabilities and legal fees, from any claim or demand made by any third party due to or arising out of: (i) Your access to or use of the Site, (ii) Your violation of this User Agreement, or (iii) the infringement by You, or any third party using Your account, of any intellectual property or other right of any person or entity. Vagaro reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Us and You agree to cooperate with Our defense of these claims. You agree not to settle any matter without the prior written consent of Vagaro. Vagaro will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.

    19.THIRD PARTIES.

    The Site may include links to other websites (each, a “Third Party Site”). We do not control or endorse any Third Party Site, and You agree that We are not responsible for the availability or contents of such Third Party Sites.  You may not distribute, sell, rent, sublicense or lease such Third Party Content, in whole or in part, to any third party; and You may not use it for any other purpose other than Your personal, non-commercial use.

    20.MISCELLANEOUS.

    • (a)

      If there is any dispute about or involving the Site or Vagaro, You agree that any such dispute will be governed by the laws of the State of California without regard to its conflict of law provisions. You agree to personal jurisdiction by and venue in the state and federal courts in and for Contra Costa County, California.

    • (b)

      No agency, partnership, joint venture or employment is created as a result of this User Agreement, and You do not have any authority of any kind to bind Us in any respect whatsoever.

    • (c)

      We may provide You with notices, including those regarding changes to this User Agreement by email, regular mail or postings on the Site, in Our sole discretion.

    • (d)

      Except as otherwise stated nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.

    • (e)

      This User Agreement contains the entire agreement between You and Us regarding the use of the Site, and supersedes any prior agreement between You and Us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in this User Agreement.

    • (f)

      Any failure on Our part to exercise or enforce any right or provision of this User Agreement shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

    • (g)

      If any provision of this User Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this User Agreement shall otherwise remain in full force and effect and enforceable.

    • (h)

      This User Agreement is not assignable, transferable or sublicensable by You, except with Vagaro’s prior written consent, but may be assigned or transferred by Us without restriction. Any assignment attempted to be made by You in violation of this User Agreement shall be void.

    • (i)

      The section titles in this User Agreement are for convenience only and have no legal or contractual effect.