These Priv Professional Terms and Conditions (this “Agreement”) apply to your use as a Priv Professional of: (1) the Priv website at http://www.gopriv.com and all affiliated websites owned and operated solely by Priv (collectively, the “Priv Site”), (2) the appointment booking engine made available by Priv through the Priv Site and the Priv-branded application for smartphone devices (collectively, the “Priv Application”), and any other online properties of Priv (the “Priv Booking Engine”) as described in Part I below, (3) the payment services made available by Priv through the Priv Application (the “Priv Payment Services”), as described in Part II below, (4) any other services or features made available to Priv Professional’s through the Priv Site or the Priv Application. Together, the items in (1) through (4) are the “Priv Professional Services”.
In this Agreement, “Priv” and “we” mean Priv, LLC, a Delaware limited liability company, and “Priv Professional” and “you” mean any person using the Priv Professional Services to offer beauty and fitness services to members (“Priv Members”) of the Priv Site and Priv Application.
Priv may update or revise this Agreement from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Priv Professional Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Priv Professional Services, in which case you will no longer have access to your Priv Professional Account (as defined below). Except as otherwise expressly stated by Priv, any use of the Priv Professional Services is subject to the version of this Agreement in effect at the time of use.
By accessing or using the Priv Professional Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Priv Professional Services.
PART I – PRIV BOOKING ENGINE
1. Priv provides the Priv Booking Engine to Priv Professionals for the purpose of assisting Priv Professionals in securing clients for their beauty and fitness services. In response to a Priv Member’s request to book a Priv Professional through the Priv Site or Priv Application, Priv directly notifies the Priv Professional of the Priv Member’s booking request through the Priv Booking Engine. A Priv Professional may accept or reject a Priv Member’s booking request in his or her sole discretion. Priv Professionals at no time shall be required by Priv to accept a Priv Member’s booking request.
2. Each Priv Professional shall be free in his or her sole discretion to determine at what times and on what dates a Priv Professional shall make himself or herself available on the Priv Booking Engine to accept booking requests from Priv Members. Nothing contained in this Agreement shall require any Priv Professional to make him or herself available on the Priv Booking Engine for any minimum length of time as a condition of use of the Priv Services.
3. Priv acknowledges that a Priv Professional’s use of the Priv Professional Services is not required to be on an exclusive basis and that Priv Professionals may provide to non-Priv Members similar services to those provided hereunder by the Priv Professional to Priv Members, provided that Priv Professionals do so in a manner that does not otherwise breach this Agreement. Priv Professionals and Priv are not, nor shall claim to be, a legal agent, representative, partner or employee of the other, and neither shall have the right or authority to contract in the name of the other nor shall it assume or create any obligations, debts, accounts or liabilities for the other.
4. Priv Professional represents and warrants to Priv that he or she is under no contractual or other restrictions or obligations which are inconsistent with the execution of this Agreement, or which will interfere with the performance of his or her duties or provision of services to Priv Member. Priv Professional represents and warrants that the execution and performance of this Agreement will not violate any policies or procedures of any other person or entity for which he or she performs services concurrently with those to be performed under this Agreement.
5 Priv Professional acknowledges and agrees to Priv’s use of third party automated calling systems for the purpose of notifying Priv Professional of a Priv’s Member’s request in the event that Priv Professional has not responded to such Priv Member’s request within 2 minutes or less. Priv has the discretion to freely and without notice change Priv Professional’s status from “available” to “off duty” for any reason, including but not limited to Priv Professional’s failure to respond to a Priv Member’s request in a timely manner.
PART II - PAYMENT TERMS
6. In order to use the Priv Payment Services, you must provide account information for at least one operational and valid domestic United States bank account through the Priv Application. You may add, delete, and edit the bank account information you have provided from time to time through the Priv Application.
7. On completion of a service by you to a Priv Member, Priv will use commercially reasonable efforts to deposit in your bank account within 48 hours your fee for provision of the service, subject in all cases to Priv’s right to retain that portion of the fee which shall constitute Priv’s booking fee for facilitating the engagement between the Priv Professional and the Priv Member.
9. Priv Professionals acknowledge and agree that they shall be solely responsible to pay any and all incomes taxes on any moneys earned from Priv Members while performing services contemplated under this Agreement.
PART III - GENERAL TERMS
11. You are required to create a Priv Professional account with Priv through the Priv Site or Priv Application (“Priv Professional Account”) in order to offer your services to Priv Members. When registering for a Priv Professional Account, you must provide true, accurate, current, and complete data about yourself on the Priv Professional’s registration form (“Priv Professional Registration Data”). You also agree to promptly update the Priv Professional Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Priv Professional Account and the information in your Priv Professional Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Priv Professional Account, whether or not authorized by you. You agree to immediately notify Priv of any unauthorized use of your Priv Professional Account or any other breach of security related to your use of the Priv Services.
13. Use of the Priv Professional Services requires Internet access through your mobile device. You are responsible for all mobile carrier charges resulting from your use of the Priv Professional Services, including from any notifications provided by the Priv Services. Priv does not guarantee that the Priv Professional Services will be compatible with all devices or will be supported by all mobile carriers.
14. Priv reserves the right, in its sole discretion, to modify the Priv Professional Services and the pricing structure for the provision of such services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Priv Site and Priv Application. Priv shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Priv Professional Services. Continued use of the Priv Professional Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Priv Professional Services, including the pricing structure in relation thereto.
15. The features, information, and materials provided and depicted through the Priv Professional Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Priv Professional Services (collectively, the “Priv Content”) are provided to Priv Professionals by Priv solely to support the Priv Professional’s permitted use of the Priv Professional Services. The Priv Content may be modified from time to time by Priv in its sole discretion. Except as expressly set forth herein, no license is granted to Priv Professionals for any other purpose, and any other use of the Priv Professional Services or the Priv Content by Priv Professionals shall constitute a material breach of this Agreement. Priv retains all rights in the Priv Professional Services and Priv Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Priv or any third party is granted under this Agreement.
16. Subject to the terms and conditions of this Agreement, Priv grants Priv Professionals a non-exclusive, non-transferable, revocable license to use the Priv Application, in object code form only, on a Priv Professional’s compatible mobile devices, solely to support the Priv Professional’s permitted use of the Priv Professional Services.
17. Priv Professionals grant Priv a perpetual non-exclusive royalty free license to use and reproduce all photography and visual imagery, including but not limited to head shots, photographs and portfolio materials which Priv Professionals upload to the Priv Application and/or Priv Site across all forms of media know or later developed throughout the world without limitation for the sole purpose of advertising, marketing and promoting the Priv Services.
18. The Priv Professional Services and Priv Content are offered solely for Priv Professional’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Priv expressly reserves all its rights and remedies under applicable state and federal laws. Priv reserves the right, in its sole discretion, to refuse service, terminate Priv Professional Accounts, remove or edit content, cancel bookings, or deny access to the Priv Professional Services. You agree not to (and not to allow any third party to): (1) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Priv Professional Services or copy any Priv Content, except as expressly authorized by Priv; (2) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Priv Professional Services; (3) use the Priv Professional Services or Priv Content for any illegal purpose; or (4) publicly disseminate information regarding the performance of the Priv Professional Services or Priv Content.
19. Priv may suspend your ability to use all or any element of the Priv Professional Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Priv may suspend your access to the Priv Professional Services if we believe you to be in violation of any part of this Agreement. After any suspension or termination, you may or may not be granted permission to use the Priv Professional Services or re-establish a Priv Professional Account. You agree that Priv shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Priv Professional Services at any time. You understand that any termination of your Priv Professional Account may involve deletion of any content stored in your Priv Professional Account for which Priv will have no liability whatsoever.
20. You represent and warrant: (1) the accuracy and truthfulness of all information you provide to Priv for uploading to the Priv Site and Priv Application or otherwise, and (2) no information you upload to the Priv Booking Engine shall infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Priv’s request) defend Priv, and its representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Priv Parties”) from and against all claims, injuries, illnesses, damages and liabilities (“Claims”) resulting from (1) your use of the Priv Professional Services, (2) any Claims made by Priv Members against the Priv Parties arising out of or relating to the acts or omissions of the Priv Professional in providing his or her beauty and fitness services to Priv Members or otherwise, or (3) any breach or alleged breach by you of this Agreement.
21. TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT SHALL THE PRIV PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE PRIV PROFESSIOAL SERVICES BY THE PRIV PROFESSIONAL (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE PRIV BOOKING ENGINE), OR (4) THE ACTS OR OMISSIONS OF A PRIV MEMBER (WHETHER DURING YOUR VISIT TO A PRIV MEMBER’S RESIDENCE OR OTHER LOCATION OR OTHERWISE) IN CONNECTION WITH YOUR PROVISION OF BEAUTY AND FITNESS SERVICES TO A PRIV MEMBER.
You and Priv understand and agree that the disclaimers, exclusions, and limitations set forth herein are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Priv would be unable to make the Professional Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
22. PRIV EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED IN RESPECT OF THE PRIV PROFESSIONAL SERVICES, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO THE INFORMATION PROVIDED ABOUT PRIV MEMBERS AND THE ACTS OR OMISSIONS OF PRIV MEMBERS.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
23. Each Priv Professional agrees and acknowledges that he or she is solely responsible for their interactions with Priv Members and any and all Claims suffered by Priv Professionals as a result of their interactions with Priv Members. You hereby release Priv from any and all such Claims.
24. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
25. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by Priv Professionals, but may be freely transferred, assigned, or delegated by Priv.
26. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
27. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Priv shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT formatters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Priv must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR PRIV MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Priv will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Priv also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Priv may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York City, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York City, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York City, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
If any part of this arbitration provision is deemed to be invalid, unenforceable, orillegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Priv shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York City, New York.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
28. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.