LAST UPDATED ON October 31, 2009
A “Business” is a person(s) or entity(ies) who uses, accesses, browses, crawls, scrapes or in any way uses the Site for commercial purposes. The terms “You”, “Your” and “Yourself” refer exclusively to the Business. The terms “We”, “Us”, “Our”, and “Vagaro” refer exclusively to Vagaro, Inc, a California limited liability company.
2. CHANGES TO THE AGREEMENT :
We may modify this 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 and any accounts set up by you (each, an “Account”) the date on which revisions were last made. You should revisit this Agreement on a regular basis as revised versions will be binding on You without further notice. Any such modification will be effective upon Our posting of a new or revised Agreement. Your continued use of the Site after any posted modification to this Agreement indicates Your assent to the modified and/or restated Agreement.
3. BUSINESS ACCOUNT CHARGES:
CHARGE POLICY Please review the “Service Descriptions” and “Fee Schedule” contained in the “Account Terms” section on the Site. All fees are in U.S. dollars, unless stated otherwise and are incorporated herein by reference. The Fee Schedule and Service Descriptions may be modified by Us in Our sole discretion. In the event of any change to the Fee Schedule and Service Descriptions, We will notify You of such change(s) by e-mail thirty (30) days in advance of such change. The Fee Schedule and Service Descriptions in effect on the date of sale of any service provided by Us shall govern the transaction. All fees, including but not limited to any set-up charges, late charges, monthly subscription charges, enhanced feature or service charges (collectively, the “Charges”) are payable upon presentation to You by Us. All charges shall be paid by way a Visa, MasterCard, or American Express credit card provided by You upon the initial establishment of your Account. By establishing a Business Account sale on the Site, You authorize Vagaro to charge Your credit card for all Charges on a monthly basis. You agree to provide a valid and active credit card number and related information to Vagaro. In the event that Vagaro is unable to process any charge against Your credit card, Vagaro shall have the right to, within ten (10) calendar days of the rejection of any charge against Your credit card to suspend or cancel your Account. You agree to regularly update Your credit card information including any change in your credit card account number, including, but not limited to any change in your billing address and/or expiration date. Vagaro, may, in its sole, discretion require You to pay a “Reinstatement Charge” in order to reactivate your Account, which amount will be determined by Vagaro in its sole discretion. Any and all past due sums owed to Vagaro shall accrue finance charges at a rate of one and one-half percent (1.5%) per month. Vagaro may, in its sole discretion, charge a “Late Fee” equal to Fifteen Dollars ($15.00) in the event that Vagaro is precluded from charging your credit card for any reason. We will charge Your credit card for services rendered in advance. You will not be entitled to receive any prorated refund of any charges made against Your credit in the event that you elect to cancel your service, irrespective of your billing cycle and the effective date of such cancellation. The charge policies contained in this Paragraph 3 may be modified, or superseded on a limited basis, by any promotion offered by Vagaro and through any change to this Agreement as set forth in Paragraph 2 of this Agreement.
4. APPLICABLE POLICIES AND GUIDELINES:
You agree to abide by the procedures, policies and guidelines contained in the Service Descriptions and Fee Schedule sections of the Site, which are incorporated herein by reference, and made part of this Agreement. The procedures and guidelines contained in the Service Descriptions and Fee Schedule sections of the Site explain the processes and procedures for establishing a Business Account. We may change these procedures and guidelines in the future, and such changes will be effective immediately upon posting without further notice to You. You should refer regularly to the Service Descriptions and Fee Schedule sections of the Site in order to understand the current procedures and guidelines for participation.
5. GENERAL RELEASE
BECAUSE VAGARO IS NOT INVOLVED IN TRANSACTIONS BETWEEN CLIENTS, BUSINESSES OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN YOURSELF AND A CONSUMER USER OF THE SITE, YOU HEREBY AGREE TO RELEASE VAGARO (AND ITS AGENTS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
You hereby agree to and shall defend, indemnify and hold harmless Vagaro and its affiliates (and their respective employees, members, managers, officers, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses, including reasonable attorneys’ fees, each “claim” (collectively, the “Claims”) arising out of or relating to: (a) any actual or alleged breach of Your representations, warranties or obligations set forth in this Agreement; or (b) Your own website or other sales channels, the products and services You sell, any Content that You provide, the advertisement, offer, sale or return of any products or services that You sell, any actual or alleged infringement of any intellectual property or proprietary rights by any products or services You sell or content that You provide, or the collection, payment or failure to collect or pay any and all “Seller Taxes” (collectively, the “Indemnity Obligation”). For purposes hereof: “Claim” includes, without limitation, any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity; and “Seller Taxes” includes, without limitation, means any and all sales, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by You on or through the Site, or otherwise in connection with any action, inaction or omission of You or any of affiliate of Yours, or any of Your or their respective employees, agents, contractors or representatives. The Indemnity Obligation shall survive the termination of this Agreement and/or the termination of Your account.
Vagaro, in its sole discretion, may terminate this Agreement and any of Your Accounts for any or no reason and without further notice. You may terminate this Agreement by providing 30 days’ advance written notice to Vagaro of such election to terminate your service (a “Business Termination”). In the event of such Business Termination, Vagaro may continue to charge Your credit card for the remaining period that services are provided to You, irrespective of Your billing cycle and the effective date of such termination. In no event shall Vagaro provide any credit or refund arising out of any pro-ration of service. By way of example only, if Your billing cycle runs from the tenth (10th) day of each month through the ninth (9th) day of each month, and You elect to cancel on the 15th day of January, 2010, Vagaro will proceed to charge Your credit card, for a full monthly payment, on or about the 10th day of February, 2010.
8. GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, the agreements and hyperlinks referenced herein and the exhibits attached hereto, represent the entire agreement between the Parties in connection with the transactions contemplated hereby and the subject matter hereof and this Agreement supersedes and replaces any and all prior and/or contemporaneous agreements, understandings and communications between the Parties, whether oral or written, with regard to the subject matter hereof. There are no oral or written agreements, representations or inducements of any kind existing between the Parties relating to this transaction which are not expressly set forth herein.
8.2 Amendment of Agreement. This Agreement may be amended or modified at any time with respect to any provision by Vagaro in accordance with the terms hereof.
8.3 Attorneys’ Fees. If any Party bring(s) any legal action arising out of any provision of this Agreement, the prevailing Party in the litigation shall be entitled to recover reasonable attorneys’ fees from the other Party, in addition to any other relief that may be granted to such prevailing Party.
8.4 Notices. Any notice required or permitted to be given under this Agreement shall be written, and may be given by personal delivery, by facsimile transmission or by registered or certified mail, first-class postage prepaid, return receipt requested. Notice shall be deemed given upon actual receipt in the case of personal delivery, or upon mailing. Mailed notices shall be addressed to Your address provided to Us a part of Your Account information. You may provide notice(s) to us at: 4906 Branford Lane, Dublin, CA 94568.
8.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
8.6 Agreement Construction. The Parties acknowledge that this Agreement, as executed, is a product of negotiation between the Parties and that it shall be construed fairly, and in accordance with its terms, and shall not be construed for or against either Party. No inferences as to the intention of the Parties shall arise from the deletion of any language or provision of this Agreement.
8.7 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if the invalid, illegal or unenforceable provision had never been part of the Agreement.
8.8 Counterparts. This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed to be an original instrument.
8.9 Rights and Remedies. Duties and obligations imposed by this Agreement and rights and remedies available hereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.
8.10 Waiver. No waiver by any Party, at any time, of any breach of any provision of this Agreement shall be deemed a waiver or a breach of any other provision herein or a consent to any subsequent breach of the same or another provision. If any action by any Party shall require the consent or approval of another Party, such consent or approval of such action on any one occasion shall not be deemed a consent to or approval of such action on any subsequent occasion or a consent to or approval of any other action.
8.11 Captions and Headings. The captions and the paragraph numbers appearing in this Agreement are inserted only as a matter of convenience and do not define, limit, construe or describe the scope or intent of this Agreement.
8.12 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.
8.13 No Third-Party Beneficiary Rights. This Agreement is entered into for the full benefit of the Parties hereto and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third Party shall have any right in, under or to this Agreement.
8.14 Incorporation of Other Documents and Hyperlinks Exhibits. Each and all the exhibits attached to this Agreement, and all documents referred to herein, are incorporated herein by reference as if set forth in full in this Agreement.
8.15 Binding Effect. This Agreement shall be binding upon and enure to the benefit of the Parties hereto, their respective heirs, legal representatives, administrators, successors-in-interest and assigns.
8.16 Assignment. You may not assign any right or interest arising under this Agreement without the prior written consent of Vagaro.
8.17 Read and Understood. Each Party acknowledges that it has read, and that it understands, this Agreement and agrees to be bound by its terms.
9. DISPUTE RESOLUTION
9.1 Mediation. Before invoking the Court Action dispute mechanism set forth in paragraph 9.2 of this Agreement, the parties shall first participate in mediation of any dispute arising under this Agreement (whether contract, tort or both). The mediator shall be a retired judge or practicing attorney agreed upon by the parties. Mediation shall be held in Alameda County, California. The cost of the mediation shall be borne by the parties equally. At least ten (10) business days before the date of the mediation, each side shall provide the mediator with a statement of its position and copies of all supporting documents. Each party shall send to the mediation a person who has authority to bind the party. If the subject dispute will involve third parties, such as insurer, subconsultants, agents, contractors or subcontractors, they shall also be asked to participate in the mediation. If a party has participated in the mediation and is dissatisfied with the outcome, that party may invoke the dispute resolution provisions set forth in paragraph 9.2 of this Agreement. If any party commences a court action based on a dispute or claim to which this paragraph 9.1 applies without first attempting to resolve the matter through mediation, then in the discretion of the judge, that party shall not be entitled to recover attorneys’ fees even if they would otherwise be available to that party in such court action.
9.2 Court Action. Any dispute or claim in law or equity between the parties arising out of this Agreement which has not settled through mediation as provided in paragraph 9.1 of this Agreement, shall be decided and adjudicated through court action in a court action in the California Superior Court for the County of Alameda.