Last Updated: December 16, 2013
Welcome to Koolocal.com. Koolocal, Inc. (“Koolocal”, “we” or “us”) provides Koolocal.com, a subdomain of any such website, any mobile application for such website or any other website operated by Koolocal (collectively, with the services offered by Koolocal, through and the features of, the proceeding, the “Site”) subject to the following conditions.
- Section 1.2 Role of Koolocal.
- Koolocal's Service. We wish to make it easy for consumers (the “Customers”) of the Site to purchase Services and book appointments for products, services or other offerings (the “Services”) offered to the public for purchase by service providers (the “Service Providers”) through appearances, listings or promotions (each, a “Listing”) on the Site. We provide a venue to allow Service Providers to advertise or provide Listings with a variety of pricing formats to potential Customers. Service Providers and Customers are referred to in these Terms and Conditions as “Users” or “you”. We urge all Users to be responsible about their use of the Site and any transaction entered into as a result of either posting a Listing, booking an appointment or purchasing or selling a Service.
- Koolocal Not Party to User Agreements. We are not a party to any agreement between any Customer and Service Provider. As a result, any part of an actual or potential transaction between a Customer and a Service Provider, including the quality, condition, safety or legality of the Listing or Service, the truth or accuracy of the Listings (including the content thereof or any rating or review), the ability of Users to book appointments or buy or sell Services is solely the responsibility of each User. You acknowledge and agree that you may be required to enter into one or more separate agreements, waivers or terms and conditions prior to booking an appointment or purchasing or selling a Service and which may place additional restrictions on you.
- Additional Services. We reserve the right, in our sole discretion and from time to time, to offer programs, products or services with unique terms and conditions that are separate from and may supersede or supplement in certain respects these Terms and Conditions. In such cases, your use of the Site with respect to such special program is governed by these Terms and Conditions together with the terms and conditions of such program, product or service.
- Section 1.3 Certain Responsibilities of Users. Users agree that they are responsible for, and agree to abide by, all laws, rules and regulations applicable to their use of the Site, their use of any tool, service or product offered on the Site and any transaction they enter into on the Site or in connection with their use of the Site.
II. TRANSACTIONS AND USE OF THE SITE
- Section 2.1 Registration.
- Registration Process. The Customer must register to access and use the Site, which shall include providing any and all information required by us during the registration process on the Site. If a person is registering on behalf of an entity, by registering such person and such entity each agrees that the person has the requisite authority to register on behalf of such entity.
- Registration and Account Information.
- The Customer represents that any information it provides during registration or at any time thereafter is true, correct and complete and that it will update all such information as necessary to maintain the truth, accuracy and completeness of such information. Failure to do so shall constitute a breach of these Terms and Conditions. The Customer agrees to promptly provide to us such additional information as we may request. In addition, the Customer shall be required to provide credit card information (or other payment method as we may permit from time to time) and authorization for us to charge such credit card (or other approved or permitted payment method) in order to purchase Services and book appointments through the Site.
- In order to book appointments, make purchases, make payments and receive refunds or reimbursements, the Customer must register with an authorized payment method as we determined in our sole discretion. We may notify the Customer of any such authorized payment method (or the un-authorization of any payment method) from time to time. The Customer agrees and acknowledges that it is solely responsible for ensuring that any such information is current, and that it may not be able to use the Site if it fails to so maintain the validity of such payment method or the truth, accuracy and completeness of its payment information, or otherwise provides inaccurate information. The Customer further acknowledges that we are not liable for any failed payments by or failed reimbursements or refunds due to the Customer as a result of the Customer's failure to maintain its account for its payment method or to provide true, correct and complete information in connection with its payment method.
- The Customer shall be responsible for maintaining the confidentiality of its account information and password and will be solely liable for all actions taken via its account and under its password, whether or not made with its knowledge or authority. The Customer further agrees that any credit card or other bank or payment information it provides during registration or at any time thereafter is valid and that it has authority to make and receive payments therefrom.
- Section 2.2 Appointments.
- Scheduling. To schedule an appointment through the Site, the Customer must input the required information as requested through the appointment scheduling process. The Customer agrees that any information it provides when scheduling an appointment, creating an account or profile, or at any time thereafter is true, correct and complete and that, where applicable, the Customer will update all such information as necessary to maintain its truth, accuracy and completeness. Failure to do so shall constitute a breach of these Terms and Conditions.
- Valid Payment Information. The Customer agrees that any credit card or other payment information it provides through the Site is valid and that it has authority to authorize payments from such credit card or other payment method.
- Section 2.3 Sales. Once the Customer has booked an appointment for a Service through the Site:
- the Customer shall be obligated to purchase such Service on at the stated appointment time specified in the Listing for such Service; and
- we may charge the Customer's credit card or other applicable payment method beginning 24 hours prior to such appointment for the purchased Service to seven (7) business days after our receipt of the notice from the Service Provider that it has completed, performed or provided a purchased Service.
- Section 2.4 Cancellations and Refunds.
- Cancellation. If the Customer wishes to cancel an appointment and cancel payment or receive a refund for a purchased Service, as applicable, it must do so by using the appointment cancellation feature on the Site or in writing by emailing us at email@example.com at least 24 hours prior to such appointment. You understand and agree that should you cancel your appointment with less than 24 hours notice or if you do not show up for your Appointment Time, you will be required to pay for the full value of the Services to be received and we will initiate payment you. If a Listing for a Service has an Appointment Time less than 24 hours from the time of purchase of Service, the Customer acknowledges and agrees that the purchase price for such Service is non-refundable.
- Refunds. A full refund will be issued to the Customer if the Service Provider cancels its appointment or refuses to perform or provide a purchased Service at the date and time agreed in the Listing for such Service or if the Customer is not satisfied with the Service for any reason. To make a request for a refund, any such request for refund must be made through the refund feature on the Site or in writing by emailing us at firstname.lastname@example.org within 30 days following the appointment. For each valid refund request, We will refund the amount paid upon request.
- Section 2.5 Relationship between Koolocal, Customers and Service Providers.
- Service Provider Responsibility. The Service Provider is solely responsible for performing or providing the purchased Service. The Service Provider is fully responsible for all Services it performs for or provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Liabilities”) it may cause you to suffer, directly or indirectly, in full or in part, whether related to the purchase, sale, performance or provision of a Service or not. You waive and release Koolocal and its subsidiaries, affiliates, partners, officers, directors, employees, representatives and agents (the “Released Parties”) from any Liabilities arising from or related to any act or omission of a Service Provider in connection with your use of the Site or your purchase, sale, performance, provision or acceptance of a Service.
- Content of Listings. The content of Listings and descriptions of the Services advertised, listed or otherwise appearing on the Site are provided by the Service Provider or other referenced third-parties. We are not responsible for any performance or quality claims associated with such content or descriptions.
- Service Provider Regulatory Issues. Service Providers may advertise Services on the Site that may require an up-to-date regulatory authorization, license, or certification. We do not verify, validate, or collect evidence of any regulatory authorization, license or certification from any Service Provider. The Customer should make whatever investigation or other resources that it deems necessary or appropriate before purchasing any Service or other promotional offers to determine if a Service Provider is qualified to perform the advertised or Listed Service. The Service Provider is solely responsible for the care and quality of goods and services being provided. We do not, will not and cannot refer, recommend or endorse any specific professional, services, products, or procedures that are advertised on the Site. The Site is not intended to be a substitute for professional advice, including medical and health advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a health condition. Never neglect to seek out, delay or disregard professional advice relating to your health because of something you have read on the Site.
- Identity. We may, in our sole discretion, verify a User's identity prior to processing a purchase. We may also refuse to process, or may cancel, a purchase, as reasonably deemed necessary to comply with applicable law or to respond to cases of misrepresentation, fraud or known or potential violations of the law or these Terms and Conditions. Refunds for cancelled orders may be issued where appropriate.
- No Guarantee of Price. We do not guarantee that Listings provide the best available rates or prices and does not guarantee against pricing errors. We reserve the right, in our sole discretion, to not process or to cancel any orders placed for a Listing or Service whose price was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email. In addition, we reserve the right, in our sole discretion, to correct any error in the stated full retail price.
- Koolocal's Role. Each User hereby acknowledges and agrees that (a) we do not sell, exchange, buy, or offer for sale, negotiate or attempt to negotiate, a sale or exchange of any interest in any Service; (b) information about a particular Listing is provided directly by the Service Provider and not by us, and we do not engage in or have any responsibility for reviewing information contained within a Listing in any manner; (c) the decision to purchase a Service is entirely in the Customer's discretion, and we do not induce or attempt to induce any User to purchase any Service; (d) the prices listed by a Service Provider on the Site for a Listing or Service may often exclude sales tax or gratuity which may be added to the final sale price at the time of payment (and which may be subject to our commissions or fees in certain circumstances); and (e) we do not guarantee any quality, price, service, or product offered by a Service Provider.
III. MATTERS RELATING TO THE SITE AND OUR SERVICES
- Section 3.1 Ownership of the Site.
- Software Available on the Site. The Site is controlled and operated by Koolocal or an affiliate of Koolocal. Software available on the Site (the “Software”) is the copyrighted work of Koolocal, an affiliate of Koolocal or an identified third party. Your use of the Software is governed by these Terms and Conditions and the terms of any additional license agreement that accompanies or is included with such Software. If the Software is not accompanied by an additional license agreement, we hereby grant you a limited, personal, nontransferable license to use the Software for viewing and using the Site in accordance with these Terms and Conditions and for no other purpose. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE. COPYING OR REPRODUCING ANY SOFTWARE AVAILABLE ON THIS SITE IS EXPRESSLY PROHIBITED, EXCEPT AS SPECIFICALLY PROVIDED FOR IN A LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.
- Permitted Use.
- The content and information on the Site as well as the infrastructure used to provide both, is the exclusive property of and proprietary to Koolocal. We grant you a limited, personal, nontransferable, nonexclusive, revocable license to access and use the Site pursuant to these Terms and Conditions and to any additional terms and policies set forth by us. You agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell or re-sell any data, content, information, software, products or services obtained from or through the Site without our express permission. In addition, you may not make any use that exceeds or violates these Terms and Conditions.
- You agree not to do any of the following, unless otherwise previously authorized by us in writing: any commercial use (other than by Service Providers who have duly and correctly registered with the Site and have agreed to the terms and provisions of the Service Provider Agreement and the other agreement incorporated therein (including these Terms and Conditions)); copy, reproduce, upload, post, display, republish, distribute, or transmit any part of the content in any form whatsoever; except as specifically provided by these Terms and Conditions, reproduce any portion of the Site on your website or otherwise, using any device including, but not limited to, use of a frame or border environment around the Site, or other framing technique to enclose any portion or aspect of the Site, or mirror or replicate any portion of the Site; deep-link to any portion of the Site without our express written permission; modify, translate into any language or computer language, or create derivative works from, any content or any part of the Site; reverse engineer any part of the Site; sell, offer for sale, transfer, or license any portion of the Site in any form to any third parties; use any robot, spider, scraper, other automatic device, or manual process to monitor, copy, or keep a database copy of the content or any portion of the Site; use the Site or post or transmit information that is in any way false, fraudulent, or misleading, including making any reservation or inquiry under false pretenses, or taking any action that may be considered phishing or that would give rise to criminal or civil liability; post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, indecent, inflammatory, sexually explicit, pornographic or profane material; violate, plagiarize or infringe the rights of us or third parties including, without limitation, copyright, trademark, patent, trade secrets, rights of publicity or privacy or any other intellectual or proprietary rights; or use or access the Site in any way that, in our sole discretion, adversely affects or could adversely affect the performance or function of the Site or any other system used by us or the Site.
If you are aware of or experience any content, activity or communication through or in connection with the Site that appears to be in violation of the above restrictions, or in violation of any other provision of these Terms and Conditions, we ask that you please inform us of any such violation by contacting us as set forth under “Notices” below.
- Access to the Site. We retain the right at our sole discretion to deny service, or access to the Site or an account to anyone, at any time and for any reason. You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control Site access may be interrupted, suspended or terminated.
- Transmission of Information. Because we do not control the security of the Internet or other networks you use to access the Site or communicate with us, we can't be, and are not responsible for, the security of information that you choose to communicate with us and the Site while it is being transmitted. In addition, we are not responsible for any data lost during transmission.
- Changes to the Site. We have the right to change or modify, upgrade, add to, or discontinue the Site or any portion or feature thereof at any time without notice. We also reserve the right to assign any rights, licenses, or obligations arising out of or relating to these Terms and Conditions or to the Sites without restriction.
- Section 3.2 Links to Third Party Sites The Site may contain links and pointers to other Internet sites, resources and sponsors of the Site. Links to and from the Site to other third-party sites, maintained by third parties, do not constitute an endorsement by us of any third parties, the third-party sites or the contents thereof. We may also provide tools or services to allow interaction between the Site and a third party site, such as a Social Media Site (as defined below). We are not responsible in any way for such third-party sites or resources and your use of such sites and resources will not be governed by these Terms and Conditions.
- Section 3.3 Social Media or Third Party Websites. If the Site offers a tool or service which allows us to access or use any profile or other information about you that you have provided to Facebook, Pinterest, Twitter or another third party website (each a “Social Media Site”) and you decide to use such a tool or service, you acknowledge and agree that:
- the information or content that are a part of your Social Media Site profile, which you have designated as “public” (or a similar designation) (with such information or content and referred to herein as “Social Media Content”) may be accessed and used by us in connection with the Site;
- the Social Media Content will be considered “User generated content” under these Terms and Conditions and both you and we shall have the same rights and responsibilities as you and we have with respect to User generated content under these Terms and Conditions;
- in the event that the Social Media Content was for any reason misclassified with a public or similar designation or is otherwise inaccurate or to which you do not agree with for any reason, you agree to work with the Social Media Site to make any changes or resolve any disputes and acknowledge that we will not be able to provide you with recourse; and
- Section 3.4 Unsolicited Ideas and Feedback.
- Unsolicited Ideas.
- From time to time, Users submit to us ideas or suggestions pertaining to our business, such as ideas for new or improved products or technologies, website or tool enhancements, processes, materials, marketing plans or new product names. We are under no obligation to review or consider them. If you choose to submit any ideas, original creative artwork, suggestions or other works (“submissions”) in any form to us, then regardless of what you say, write or provide to us in connection with your submissions, the following terms shall apply.
- The sole purpose of this policy is to avoid potential misunderstandings or disputes in the event that any part of our business, such as our products, websites, technologies or marketing strategies, seem similar to any of your submissions. If you provide any submissions to us, you agree that: (A) your submission and its contents will automatically become the property of Koolocal, without any compensation to you; (B) we may use or redistribute any such submission and its contents for any purpose and in any way; (3) there is no obligation for us to review any submission; and (4) there is no obligation to keep any submission confidential.
- Feedback on our Business. We welcome your feedback regarding many areas of our business. If you want to send us your feedback, we simply request that you send it to us as set forth under “Notices” below. Please provide only specific feedback on our websites and services. Keep in mind that we assume no obligation to keep any feedback you provide confidential and we reserve the right to use or disclose such information in any manner.
- Section 3.5 Communications and Use of Other Users' Information.
- You agree that, with respect to other Users' personal information that you obtain directly or indirectly from or through the Site or through any Site-related communication, transaction or software, we have granted to you a license to use such information only for (i) Site-related communications that are not unsolicited commercial messages, (ii) using services offered through the Site, and (iii) inquiring about or otherwise facilitating a transaction between you and the other User related to the purpose of the Site (such as inquiring about or booking an appointment or making a purchase or sale of a Service). Any other purpose will require express permission from the User. You may not use any such information for any unlawful purpose or with any unlawful intent.
- In all cases, you must give Users an opportunity to remove themselves from your address book or database and a chance to review what information you have collected about them. In addition, under no circumstances, except as defined in this provision, may you disclose personal information about another User to any third party without both our consent and the consent of the other User. You agree that other Users may use your personal information to communicate with you in accordance with this provision. Further, you agree that you will protect other Users' personal information with the same degree of care that you protect your own confidential information (using at minimum a reasonable standard of care), and you assume all liability for the misuse, loss, or unauthorized transfer of such information.
- We have no duty to pre-screen content posted on the Site by Users, whether directly contributed by the User or contributed by us or a third party on behalf of the User (including, without limitation, Listings, ratings, reviews of a Service, Service Provider or Customer, participation in an interactive community, forum or blog (each an “Interactive Forum”) or any other content provided by a User to the Site), (including information that a User or any other person provided to a third party website or mobile application which is then provided to the Site by a tool or service we offer, collectively, “User contributed content”). We are not responsible for User contributed content.
- We reserve the right to decline to permit the posting on the Site of, or to remove from the Site, any User contributed content that fails to meet any guidelines posted on the Site or if it otherwise violates these Terms and Conditions, each as determined in our discretion. We may also remove User contributed content if it is brought to our attention, such as by notice given to us by a User or any third party that any part of these Terms and Conditions, or any other requirements governing the posting of such content, has/have been apparently breached in respect of such content, as determined in our consent. Finally, we reserve the right (but do not assume the obligation) to edit a User's content or User contributed content to cause the content to comply with any applicable content guidelines or applicable laws, rules or regulations. Users remain responsible for reviewing their User-contributed content to ensure it is accurate and not misleading.
- In contributing any User contributed content, you represent and warrant (i) you have created your Statements, or, (ii) if you are acting on behalf of the creator, that you have express, advance authority from the creator to submit or post the Statements, and that you have all rights necessary to grant the licenses and grants in these Terms and Conditions. You further represent and warrant (or, if you are acting on behalf of the creator of the Statements, you have been assured that the creator represents and warrants) that the sharing of Statements for the purposes you have selected will not violate or infringe any copyrights, trademarks, or any other intellectual property rights or rights of third parties, including the rights of publicity or privacy. You represent and warrant that you will not upload, post, transmit or otherwise make available Statements if they are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, indecent, inflammatory, sexually explicit, pornographic or profane, invasive of the privacy of another person, or violate any third party rights; or if they contain any material that harbors software viruses, or any other computer codes, files or programs designed to interrupt, destroy or limit the functionality of any software or computer equipment.
- All User contributed content is the sole responsibility of the User who contributed such content, whether such User contributed the content directly or through a third party website. Users are solely responsible for their User contributed content, and we specifically disclaim all liability for User contributed content.
- By submitting or authorizing User contributed content, you grant to us and our affiliates a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free and fully paid-up license to use, copy, license, sublicense (through multiple tiers), adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit the copy, the photographs and the likenesses (if any) of any of your User contributed content, in connection with our business or the business of our affiliates. You further grant us and our affiliates the ability to copyright and protect the User contributed content, including the images, copy, and content available via any User's Listing, from the unauthorized use by unaffiliated third parties who may, from time to time, attempt to pirate such information via electronic or other means. This includes, but is not limited to, the right to file suit to seek injunctive relief to protect such material. You agree that we may sublicense all the rights granted to us under these Terms and Conditions to one or more third parties we may contract with to display all or part of the member's property listing or otherwise provide promotional or other services related to our business. Further, each User agrees that we may reproduce in whole or in part any User contributed content supplied by such User in the promotion of any Listing or the promotion of the Site.
- In the event that it is determined that you retain any rights of attribution, integrity or any other moral rights in any User contributed content, you hereby declare that you do not require that any personally identifying information be used in connection with the User contributed content or any derivative works thereof and that you have no objection to the publication, use, modification, deletion or exploitation of the User contributed content by us or our affiliates.
THE KOOLOCAL SERVICES AND SITE, AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN THE KOOLOCAL SERVICES AND SITE ARE PROVIDED “AS IS, “WHERE IS” AND “WHERE AVAILABLE WITH NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED. KOOLOCAL AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. KOOLOCAL DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SITE AND THE KOOLOCAL SERVICES. KOOLOCAL DISCLAIMS ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SITE AND THE KOOLOCAL SERVICES. KOOLOCAL DISCLAIMS ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR THE KOOLOCAL SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY KOOLOCAL.
Koolocal disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed in the Koolocal results or posted on the Site by Koolocal or third parties. Koolocal disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information or material. Koolocal disclaims any responsibility for any harm resulting from downloading or accessing any information or material on the Koolocal site or on other sites on the Internet accessed through Koolocal.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE KOOLOCAL SERVICES OR SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
V. INTELLECTUAL PROPERTY MATTERS
- Section 5.1 Koolocal IP. We own all rights, titles, and interests in the Site, all content, material, and trademarks presented on the Site or transferred thereby (excluding any licensed Service Provider Marks), and any software, technology or tools used by Koolocal to promote, market, sell, generate or distribute the Listings or Services, as applicable, and all intellectual property rights related thereto (collectively the “IP”). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights and the Users may not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, adapt, edit, modify or timeshare the IP or any portion thereof, or use such IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. The Users may not prepare any derivative work based on the IP. The Users may not translate, reverse engineer, decompile or disassemble the IP.
- Section 5.2 Use of the Site and the IP.
- Use of IP. You agree that the Site and all content and information on the Site, including but not limited to the Listings, graphics, user interface, audio clips, video clips, editorial content and the scripts and software used to implement the Site, contains proprietary information and material that is owned by Koolocal or our licensors and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Site in compliance with these Terms and Conditions. No portion of the Site may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site in any manner, and you shall not exploit the Site in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
- User Intellectual Property Restrictions. You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. We do not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission.
VI. INDEMNIFICATION AND LIMITS OF LIABILITY
- Section 6.1 Indemnification by Users. The Service Provider agrees to defend, indemnify and hold the Released Parties harmless from and against any claims, actions, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney's fees and costs) arising out of or relating to (a) your use of and access to the Site, including any data or content transmitted or received by you; (b) your violation of any term of these Terms and Conditions, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) any information or content that is submitted to or through the Site via your account, including without limitation misleading, false or inaccurate information; (f) your negligent or willful misconduct; (g) any other party's access and use of the Site with your unique account information, password or other appropriate security code.
You are solely responsible for your interactions with Service Providers and other users of the Site. To the extent permitted under applicable laws, you hereby release Koolocal from any and all claims or liability related to any Service of a Service Provider, any action or inaction by Service Provider, including Service Provider's failure to comply with applicable law or failure to abide by the terms of a Koolocal, and any conduct, speech, or Statements, whether online or offline, of any other user.
- Section 6.2 Limitations on Liability.
- Generally. The information presented or contained in the Site is presented for informational purposes only. No information, whether oral or written, obtained by a Customer from a Service Provider, a Service Provider from a Customer or from one User to any other User in any capacity will create any warranty not expressly stated in these Terms and Conditions.
- For Customers.
- You understand and agree that the Service Provider listed as the seller and provider of the Service specified in a Listing, is solely responsible for performing or providing the Service, is fully responsible for all Services it provides to a Customer and shall liable for all claims, damages or losses arising out of the Services provided by it.
- You further acknowledge and agree that we are not responsible for (A) any price adjustments made by a Service Provider related to a Listing, Service or appointment time, and (B) any Liabilities that you may suffer, directly or indirectly, in full or in part, whether related to the booking of an appointment, purchase of a Service or performance of a Service.
- To the fullest extent permitted by law, you agree to and hereby waive and release the Released Parties from any liabilities arising from or related to (a) any act or omission of a Service Provider in connection with your purchase of a Service, including a Service Provider's failure to comply with applicable law or failure to abide by the terms of a Listing or a Service, or (b) any Listing or Service of a Service Provider, any action or inaction by a Service Provider, or (c) any indirect, special, punitive, consequential, (including, lost profits or lost data collected through the services), or incidental damages, whether based on a claim or action of contract, warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if we have been advised of the possibility of such damages.
- For Users. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KOOLOCAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS WEBSITE. UNDER NO CIRCUMSTANCES WILL KOOLOCAL BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE WEBSITE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KOOLOCAL ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR WEBSITE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE WEBSITE; OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL KOOLOCAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO KOOLOCAL HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KOOLOCAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Section 7.1 Arbitration. Any dispute, controversy, difference or claim arising out of, relating to or in connection with these Terms and Conditions or breach hereof shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect by one arbiter appointed in accordance with such rules. The arbiter's award shall be final and binding. The arbitration shall take place in Dallas, Texas or such other place as the parties may agree. The arbitrator shall apply Texas law consistent with the Federal Arbitration Act and applicable statutes of limitations, and must honor claims of privilege recognized at law. The arbitrator shall have no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only the User's or Koolocal's individual claims, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
- Section 7.2 Assignment. We may assign these Terms and Conditions in our sole discretion. You must obtain our prior written consent to assign these Terms and Conditions, which may be granted or withheld by us in our sole discretion.
- Section 7.3 Amendments. We reserve the right at all times to discontinue or modify any part of these Terms and Conditions as we deem necessary or desirable. If we make changes that materially affect your use of the Site or our services we will notify you by sending you an email to the email address that is registered with your account or by posting notice of the change on the Site. If you have an account on the Site, any changes to these Terms and Conditions will be effective upon the earlier of our dispatch of an email notice to you or our posting of notice of the changes on our Site, provided that, these changes will not apply to Services purchased prior to the effective date of such changes. These changes will be effective immediately for new and existing users of our Site and for all Listings and all Services purchased after the effective date of the change. We suggest that you revisit these Terms and Conditions from time to time to ensure that you stay informed of any such notifications of changes to the Site. Your use of the Site after we update these Terms and Conditions will constitute acceptance of the modified Terms and Conditions.
- Section 7.4 Notices. Except as explicitly stated otherwise, any notices to us shall be given by email to email@example.com or by postal mail to:
Notice to the User will be sent to the email address provided to the Site by the Service Provider during the registration process or as later updated in its account.
- Koolocal, Inc.
Attn: Customer Service
4925 Greenville Ave., Suite 200
Dallas, Texas 75206.
Notice shall be deemed given upon receipt or 24 hours after an email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give notice to you by postal mail, certified mail or courier service, to any physical or electronic address provided by the User during the registration process or as later updated in its account. In such case, notice shall be deemed given three days after the date of mailing to a physical address and one day after mailing to an electronic address.
- Section 7.5 Governing Law. These Terms and Conditions shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of these Terms and Conditions shall be governed by, the laws of the State of Texas, without giving effect to provisions thereof regarding conflict of laws. Except as otherwise provided by Section 7.1 above, any action or proceeding seeking to enforce any provision of, or based on any right arising out of, these Terms and Conditions shall be brought against any of the parties in the courts of the State of Texas, County of Dallas, or, if it has or can acquire jurisdiction, in the United States District Court for the District which includes the County of Dallas, and each of the parties hereby irrevocably and unconditionally consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding, waives any objection to venue laid therein and agrees not to commence any action, suit or proceeding relating thereto except in such courts. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
- Section 7.6 Enforcement of These Terms and Conditions. We may immediately terminate the User's access to or use of the Site due to such User's breach of these Terms and Conditions or any other unauthorized use of the Site. However, we do not guarantee that we will take action against all breaches of these Terms and Conditions. Any failure to take immediate action with respect to a breach by the User or others does not waive our right to act with respect to such breach or any other breach. Any action or inaction by us in response to any breach of these Terms and Conditions does not limit our rights with respect to actions it may take in response to any other similar or different type of breach.
- Section 7.7 Severability. If any portion of these Terms and Conditions is found to be invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms and Conditions shall remain in full force and effect. Further, any provision of these Terms and Conditions held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
- Section 7.9 Headings. Headings in these Terms and Conditions are for reference only and do not limit the scope or extent of such section.
- Section 7.10 Independent Contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relations is intended or created by these Terms and Conditions or the Service Provider's use of the Site.
- BY ACCESSING THE SITE, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU WILL ABIDE BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, IMMEDIATELY STOP ACCESSING THE SITE AND DO NOT USE ANY KOOLOCAL SERVICE OFFERED THROUGH THE SITE.