ArtistOnGo Artist Agreement
Effective Date: June 21, 2020
Welcome to the Nomad Artist Company (hereinafter “Company,” "ArtistOnGo," “we” or “us”) ArtistOnGo platform, which is accessible at https://artistongo.com
(including all content under the “ArtistOnGo” domain name, and referred to herein as the “Website”) and via our mobile applications (“Apps”) (altogether, the “Platform”). We’ve developed an online marketplace to provide services (“Services”) to help beauty services professionals (each, an “Artist” or “you”) find great salon spaces (each, a “Salon Space”) for rent by hour or by day from our member salons (“Salons”), without any long-term commitments, so you can make appointments with your customers or clients (herein, “Customers”) anywhere, anytime to provide your beauty-related services to such Customers (herein “Artist Services”). The terms and conditions set forth in this document (the “Agreement”) govern your access to and use of the Platform and Services. This Agreement further includes and fully incorporates the additional general terms and conditions of our Website “Terms of Service” at: https://artistongo.com/terms-service
Specifically, you agree that: i) you possess all required licenses, permits and insurance policies with respect to your Artist Services, and ii) you are solely responsible for all transactions regarding your Services or otherwise between you and you Customers, and neither Company or the Salon has any responsibility for such transactions or Services.
You agree that you are aware that there are special requirements in place at this time in the state of New York (“NYS”) applying to you as a hairstylist as a result of the COVID-19 pandemic crisis. Specifically, you agree that you have read and understood the NYS COVID-19 Regulations (the “Regulations”) that are posted at Hair Salons And Barbershop Summary Guidance
. The Regulations include, among other requirements, a mandate that all hairstylists must be tested for COVID-19 every 14 days, even if asymptomatic. You hereby represent and warrant that you are in compliance and will continue to maintain compliance with the Regulations for the duration of the Term of this Agreement. You further expressly warrant that upon your experiencing any COVID-19 symptoms, you will immediately notify ArtistOnGo and cancel your bookings. Finally, you agree that you will indemnify us under the terms of Section 7.1.1 , below, in the event of any breach by you of the foregoing warranties.
- “Artist” means the party Booking a Salon Space using the Platform.
- “Book” means the act of engaging in a Booking on the Platform.
- “Booking” means the arrangement under which an Artist reserves and commits to renting a Salon Space by accepting the times, fees, and any additional terms or limitations described in a Listing. A “Booking” is only the grant of a limited, temporary, revocable license to use a Salon Space in the manner, for the time, and subject to all restrictions provided, subject to this Agreement, and as confirmed through the Platform. A Booking does not provide an Artist with a lease but only allows limited access to use the Salon Space as permitted in the Agreement.
- “List” means the act of posting a Listing on the Platform.
- “Listing” means the information that a Salon may post on the Platform providing details about the Salon Space including availability, pricing, and terms or limitations of use.
- “Salon Space” means the location or site that is made available by a Salon for Artist use during specific times for the purpose of providing Artist beauty services to Customers, and subject to specific fees and any site-specific terms or limitations.
- “Salon” means the party that lists a Salon Space for rent to an Artist.
- “Services” means the services we provide via the Platform to enable you to book Salon Spaces. The term “Services” does not include any services provided by third parties.
- Services. Under this Agreement, we will provide you with access to our Services through the Platform via our Website or Apps. You may use the Services to Book Salon Space(s) as an Artist, communicate with other users, and access your Account. We are continuously improving the Platform and Services for all users and reserve the right to make changes in our sole discretion. Changes we make to the Platform or Services, including discontinuing certain features, may affect all users. We are not responsible if any specific changes we make to the Platform or Services adversely affect how you use them.
- Before using the Platform or Services, you must create an account on the Platform (“Account”) and provide us with information about yourself. We may ask that you update your Account or provide additional or different information at any time. You will be required to provide an email address and security password when opening your Account (“Credentials”), and you agree to keep your Credentials private and secure. You are responsible for any actions taken on your Account using your Credentials whether or not authorized by you.
- When creating or using your Account, we may request or permit you to provide information about yourself or your services in the form of text, images, or videos (collectively, “Content”). You agree that you will only provide Content to us that you own or have authorization to provide, and you will ensure that Content is accurate and complete. You must keep your Account Content current, including contact or payment information. We reserve the right, but shall not be obligated, to use public and private data sources to validate the accuracy of any Content, including your identity or business information. You agree to provide us any additional information reasonably required to verify the accuracy or completeness of the Content that you provide, and we may condition your use of the Platform or Services on our ability to verify the accuracy and completeness of this Content.
- If you are not at least 18 years old, you may not open an Account, access the Platform, or use the Services. Users who use the Services or the Platform to Book Salon Spaces on behalf of individuals under 18 years old accept personal liability for all acts or omissions of such individuals.
- You may close your Account at any time by notifying us. You are responsible for all activity associated with your Account made before it is closed including payment of Fees and Taxes or other liabilities caused by or resulting from use of the Platform or Services.
Compliance with Laws
As used in this Agreement, “Laws” means all applicable federal, state, local, and other governmental laws, regulations, ordinances, codes, rules, court orders, and all recorded and unrecorded private contract, restrictions, covenants and other agreements . You will comply with all Laws applicable to your use of Salon Spaces and our Services. While we may provide information to help you understand certain obligations related to using Salon Spaces, we are not authorized to provide, and do not provide any legal advice. You are solely responsible for your compliance with Laws, and may only use the Platform or Services in compliance with applicable Laws. If you are unsure how to comply with Laws, you should seek legal advice related to Booking a Salon Space.
Fees and Taxes
- Fees. You are responsible for payment of fees, expenses, and other amounts related to Bookings (“Fees”). The specific Fees charged are presented to you when you complete, update, or cancel a Booking. Please review all Fees before completing a Booking to make sure you understand the Fees for the Booking. Please contact the applicable Salon through the Platform before Booking if you don’t understand the Fees listed.
- Additional Fees. A Booking provides a limited use of a Salon Space as described in the Listing. If you use a Salon Space beyond the scope of the license granted by the Booking you will be responsible for payment of additional Fees (“Additional Fees”). We will charge Additional Fees if you exceed the permitted usage time (for example, a calculated hourly rate billed in 30-minute increments) or other usage terms of the Booking (for example, exceeding the use of Salon amenities). You are solely responsible for and will pay for any damages to Salon Spaces or amenities that are caused by you, your Customers or anyone associated with you or your Booking. Any disputes regarding Additional Fees will be resolved under the dispute resolution provisions of this Agreement.
- Deposits and Refunds. Certain Bookings may require you to tender prepaid Fees or a refundable amount (“Deposit”) in advance. All Fees and Deposits, as applicable, will be identified prior to completing your Booking. While such funds are held by Company, we may at our option credit Deposits to your Booking or return them to you when you vacate the Salon Space in acceptable condition and free of any material damage. While we may facilitate the collection of Fees and Deposits for Salons, once these amounts are remitted to Salons, we are not responsible for the return of Fees or Deposits to Artists.
- Taxes and Fines. You are solely responsible for payment of all taxes, levies, penalties, and other costs imposed by any taxing authority or government agency related to Booking Salon Spaces including any sales or occupancy tax, indirect taxes such as valued added tax (VAT) or goods and services tax (GST), usage or permitting fees, duties, and other taxes imposed by municipalities, states, or governments through regulation, ordinance, law, or judicial or regulatory interpretation (collectively “Taxes”). If any taxing authority demands that we pay such Taxes on your behalf, you are immediately liable to us for such Taxes and will reimburse or pay us for such Taxes upon demand. You are also responsible for any penalties arising from your failing to comply with this Agreement including those issued by regulatory or taxing authorities, law enforcement, fire code or safety agencies, or other third parties; or amounts that may be billed by us for losses we or others incur caused by your failure to comply with this Agreement or your misuse of the Platform, Services, or Salon Spaces (collectively, “Fines”). You understand and agree that Company does not provide you with any advice or guidance of any kind or nature regarding Taxes, and that you have been advised to consult with your tax advisor for any required advice or guidance regarding Taxes.
- Payment. You will timely and fully pay any Fees, Deposits, Taxes, Fines, or other amounts you are required to pay under this Agreement. If we are unable to receive payment for amounts that you owe via the Platform for any reason, then we may require that you pay through other means (such as direct debit, wire transfer, or cashiers’ check). You are responsible for any costs or expenses associated with our recovering Fees, Taxes or Fines owed, including our attorneys’ fees or expenses. In our discretion, any payments that are more than seven (7) days overdue may incur a late charge of up to ten percent (10%) and will accumulate interest of ten percent (10%) per month until the delinquency is resolved.
- Receiving Payment. Acceptance and payment of funds on the Platform (“Payment Processing”) is provided by our third party payment processor. As a condition using Payment Processing, you must provide accurate and complete financial information as requested, and you authorize us to share this information with our processor using its security protocols. We do not store your payment information on our systems and are not responsible for the safety or security of that information. We may change or add payment processing services at any time upon notice to you, which may be subject to additional terms or conditions.
Communications and Notices
- We may communicate with you and provide you information or notices regarding your Account or transactions through email, telephone, text message or SMS, or through messaging on the Platform. You will promptly respond to any communications you receive, and you understand that failure to do so may impact your ability to Book Salon Spaces, or use the Platform or Services.
- We may send you notices to the email address or physical address included in your Account, through messaging on the Platform, or the address provided in your Account. You may send any legal notices to us at contact@ArtistOnGo.com. You agree that any email notice from us is considered accepted by you on the day such notice was sent and will have the same legal effect as if it were physically delivered to you.
- You agree to receive any communications from us and transact with us electronically. Your acceptance of emails or other electronic messages constitutes your consent to electronic communications and transactions, and your electronic signature has the same legal effect as physically signing a document.
- You also specifically consent to receive communications related to your Account through text messages, SMS, or other communications sent to your mobile device (“Mobile Notifications”). Standard mobile rates will apply for any Mobile Notifications you receive. You may stop receiving these Mobile Notifications at any point by responding to such message with “STOP” or otherwise following the instructions included in a message, however, if you do so, you may miss critical messages related to your Account. We are not responsible for and disclaim all liability for all harm or losses caused by disabling Mobile Notifications. Please contact us if you experience issues when attempting to stop Mobile Notifications.
- To receive electronic communications you must keep your hardware and software up to date. If you are having problems receiving communications, please first verify that your hardware and software have all current updates installed. If you still have problems communicating receiving messages, please check our support pages and, if you cannot resolve the issue yourself, please contact us.
Communication with Other Users
- The Platform allows you to communicate with other users without disclosing sensitive personal contact information. It is your responsibility to use good judgment in the information you provide to other users. You may use the Platform to Book Salon Spaces, communicate with us or other users, resolve disputes, or use other functionality we provide to you through the Platform. You may not use the Platform to send messages that are unwanted or unrelated to a Listing or Booking through the Platform, use the Platform to harass or attempt to market other services to users, or send spam.
- We are not responsible for, and disclaim all liability resulting from, any losses or harm to you resulting from sharing personal or sensitive information with other users, or communicating or engaging with users outside of the Platform. Company, at its sole option and without notice or any obligation to do so, may from time to time (i) remove communications that contain or share personal contact information, or (ii) suspend or terminate the accounts of users that share personal contact information.
- No Endorsement. We provide a Platform to help users connect with each other on the Platform but do not endorse any specific Artists, Salons, or Salon Spaces registered with or offered through the Platform. You understand that any designations or ratings posted on the Platform may be inaccurate or out of date, and do not constitute any endorsement. Salons are independent contractors, unaffiliated with Company, that are solely responsible for the character, quality, utility and provision of any Salon Space they provide or do not provide to you.
Ownership, License, Restrictions
Company owns or licenses all right, title, and interest in the Platform and Services, and all intellectual property rights embodied or contained in them (individually and collectively, “IP”). IP includes all registered or unregistered potential patents, copyrights, trademarks, trade secrets, and other proprietary rights. Through your Account, we grant you a limited, temporary, revocable, non-transferable, non-exclusive license to use the Platform and Services for the purposes described in this Agreement, and only as provided to you through the Platform. This license does not constitute a transfer of ownership or grant you any additional rights to use the IP. You may not register, claim ownership in, or sublicense the Platform, Services or IP; use the Platform, Services or IP in violation of this Agreement or Laws; or reverse engineer or copy all or any portion of the Platform, Services or IP (except as expressly permitted). We may suspend or close your Account and pursue legal action against you if we believe or determine that your use of the Platform, Services or IP exceeds the scope of this grant; or that you are attempting to hack or disrupt the use of the Platform, Services or IP; or that you are otherwise interfering with the normal operation of the Platform or Services
- Posting Content. You represent and warrant that you are authorized to submit your Content to the Platform, and that any Content you submit does not violate the proprietary or privacy rights of a third party. You may not provide any Content that is copyrighted by third parties without their express permission. You grant Company a fully-paid, worldwide, non-exclusive, perpetual license to use, copy, transmit, distribute, modify, publicly display, and sublicense any Content you provide to us. This grant includes our ability to use any Content for both internal use (such as analysis to improve the Platform or Services), or external use (such as in marketing or online advertising). If you cannot provide us the above grant then you may not provide Content to us. You agree to indemnify, defend and hold us harmless for any damages or losses based on third-party claims that Content violates proprietary, IP or privacy rights.
- Restrictions on Content. You may never post any Content that (i) is defamatory, obscene, profane, or pornographic; (ii) is abusive, harassing, or disrespectful of other users; (iii) violates applicable Laws, including those prohibiting discrimination, false advertising, privacy, or unlawful marketing; (iv) is intended to deceive or mislead, is false or inaccurate, or misrepresents the nature or condition of a Salon Space; or (v) includes sensitive personal information, including payment, contact information, or personal account details. You will not knowingly or negligently provide any Content that contain viruses, Trojan horses, and other harmful content (collectively, “Viruses”). While we do attempt to identify and contain any Viruses impacting the Platform, we are not liable and disclaim all responsibility for ensuring that the Platform is free of Viruses.
As an Artist, you agree to carefully review the applicable Listings to confirm they are appropriate for your services before booking Salon Space. The Platform allows you to verify details or ask the Salon specific questions about the Salon Space, or confirm a Booking. Prior to engaging in a Booking, you will need to provide payment information through the Platform. Booking Fees and any applicable Deposits will be shown to you on the Platform before you complete your Booking. You are responsible for all Fees and Taxes associated with your Bookings. All Bookings are subject to the modification and cancellation provisions of Section 5 of this Agreement. When you Book a Salon Space, you are only provided a license to use the Salon Space as described in the Booking and confirmed by the Salon, subject to this Agreement. A Booking does not provide you a lease or access or use of the Salon Space beyond the specified time and limitations.
You will comply with this Agreement throughout the Booking, use the Salon Space only as permitted or agreed upon and consistent with the Listing, and assure that any of your Customers do the same. During your Booking, you are responsible for (i) the behavior and acts of any of your Customer or others that access the Salon Space, (ii) ensuring that your use does not exceed any limitations identified in the Booking, (iii) coordinating the timely setup or breakdown of your services, or (iv) complying with applicable Laws including acquiring any required licenses, permits and insurance for your services. You are responsible for and accept all liability for any damage done to the Salon Space or its amenities during your use whether intentional or not, your failure to comply with applicable Laws, and any Fines you incur. You agree to return the Salon Space to the Salon in substantially the condition as provided to you, and to promptly notify Salons of any damage done to the Salon Space or amenities.
Booking Requests; Modifications; Cancellations
- Subject to meeting any requirements (such as completing any verification processes) set by the Salon or ArtistOnGo, you as the Artist may make requests to book a Salon Space at a specified time and duration either via the Services or by sending an email or text directly to ArtistOnGo (each, a “Request”). All applicable fees, such as listing fees, security deposit (if applicable), and any applicable taxes (“Total Fees”) will be presented to you prior to the Booking. You shall be required to pay the Total Fees for any Booking upon making a Request. When making a Request, you hereby grant to ArtistOnGo the authority and power of attorney to login to your account as may be necessary, present your Requests to the applicable Salon(s), and execute the Booking with the Salon(s) on your behalf. We will then notify you via email once the Salon accepts (or declines) your Booking Request. If the Salon, does not decline your Request within twelve (12) hours of receipt of your Request, then such Request shall be deemed accepted. Upon the acceptance of your Request by the Salon, you may only cancel such confirmed Booking under the terms of the cancellation policy for the Listing; and ArtistOnGo will refund the amount of the Fees due to you in accordance with such cancellation policy.
- Salon and Artists are responsible for any modifications to a Booking or re-Bookings that they make via the Platform and Services ("Booking Modifications"), and agree to pay any additional Fees and/or Taxes associated with such Booking Modifications.
- Once Artist has committed to a Booking with a Salon using the Platform, Artist agrees that any Booking Modifications with such Salon shall be exclusively via the Platform, and Artist may not and shall not directly engage in any such Booking Modification transactions directly with the Salon. In the event that Artist breaches the foregoing exclusivity clause, Artist shall compensate Company as liquidated damages and not as a penalty in the amount of twice the Fees that Artist would have paid to Company had Artist engaged in the Booking Modifications using the Platform in accordance with the terms of the original Listing and Booking.
- If a Salon cancels a confirmed Booking, Company will remit a full refund of the Fees to Artist for such Booking within a commercially reasonable time of the cancellation. In some instances, Company may allow the Artist to apply the refund to a new Booking or re-Booking, in which case Company will credit the amount against the Artist’s subsequent Booking at the Artist’s direction. Notwithstanding the foregoing, if a Salon cancels a confirmed Booking because of a Force Majeure or other event beyond its reasonable control, Artist waives any claim of compensation or damages against Company or the Salon except for a refund of prepaid Fees.
- In certain circumstances, Company may decide, in its sole discretion, that it is necessary to cancel a confirmed Booking and make appropriate refund and payout decisions. This may be for reasons set forth in Company's extenuating circumstances policy or where Company believes in good faith, while taking the legitimate interests of all parties into account, that cancellation is necessary to avoid significant harm to Company, third parties or property. In the event of a Booking dispute or other issue between Salon and an Artist prior to the Booking appointment time, Company in its sole discretion may elect to cancel the Booking in question, and make appropriate refund and payout decisions.
Warranties and Disclaimers
- By opening your Account, you represent and warrant that (a) you are authorized to use the Platform and Services and have authority to execute this Agreement; (b) all Content and information you provide to us is accurate and complete; (c) you will not use the Platform or Services in violation of Law, to commit fraud, to deceive other users, or for any other improper purpose; and (d) you are authorized to provide any Content to us.
- When using the Platform or Services as an Artist, you further represent and warrant that (a) you will not use any Salon Space in a manner that violates Laws, or that facilitates such violation by third parties; (b) that any payment information you provide to us may be used as described in this Agreement; (c) you are responsible for all transactions with, and services you provide to Customers, and neither Company or the Salon shall be responsible or liable in any way; (d) you will exercise due care in using all tools provided by you or the Salon Space in performing your services for Customers, and neither Company or the Salon shall be responsible or liable in any way; (e) you have all licenses, permits, insurance, certificates and training are required by Law in order to perform your services for Customers; and (f) you are solely responsible and will pay for any damages to Salon Spaces or amenities that are caused by you, your Customers or anyone associated with you or your Booking.
- WE PROVIDE THE PLATFORM AND SERVICES TO LIST AND BOOK SALON SPACES, AND PERMIT COMMUNICATIONS WITH OTHER USERS. WE ARE NOT RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR PROVIDING, OR FOR THE CONDITION OR NATURE OF ANY SALON SPACE. SALONS, ARTISTS AND CUSTOMERS ARE INDEPENDENT THIRD-PARTIES, AND ARE NOT AFFILIATED, CONTROLLED BY, OR EMPLOYED BY COMPANY. SALONS SET THEIR OWN PRICES, USE THEIR OWN FACILITIES AND RESOURCES, AND MAY CONDITION USE OF SALON SPACES AS THEY FEEL IS APPROPRIATE FOR THEIR BUSINESS.
- YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM AND SERVICES IS AT YOUR OWN RISK. COMPANY IS NOT RESPONSIBLE FOR PERFORMING AND: A) DOES NOT PERFORM BACKGROUND CHECKS ON ARTISTS OR SALONS (INCLUDING CRIMINAL OR CIVIL CHECKS); B) DOES NOT REVIEW THE CONDITION OF SALON SPACES OR ENSURE THAT THEY COMPLY WITH EXISTING LAW, MEET ANY SPECIFIC REQUIREMENTS, OR ARE CONSISTENT WITH THEIR LISTING; AND C) DOES NOT GUARANTEE PERFORMANCE OF ANY USER OR THIRD PARTY. ANY INFORMATION PROVIDED TO YOU REGARDING SALONS OR SALON SPACES IS ONLY PROVIDED TO FACILITATE YOUR USE OF THE PLATFORM AND IS PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY. COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, THAT ANY INFORMATION PROVIDED THROUGH THE PLATFORM IS ACCURATE OR COMPLETE, OR THAT ANY SALON OR SALON SPACE WILL BE PROVIDED TO YOU AS DESCRIBED IN A LISTING. COMPANY DISCLAIMS ALL RESPONSIBILITY FOR AND LIABILITY RESULTING FROM THE NEGLIGENCE, INTENTIONAL MISCONDUCT OR CRIMINAL ACTIVITY OF ALL USERS, ARTISTS, SALONS OR THIRD PARTIES, OR ANY INJURY OR PROPERTY DAMAGE THAT OCCURS TO YOU, THIRD PARTIES, OR PROPERTY WHILE ACCESSING OR USING SALON SPACES.
- THE PLATFORM AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY GUARANTEE OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY FOR YOUR PARTICULAR USE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE DISCLAIM THAT THE PLATFORM OR SERVICES ARE FREE FROM ERROR OR VIRUSES; THAT THEY WILL NEVER CAUSE HARM; THAT THEY MEET OR BE SUITABLE FOR YOUR NEEDS OR REQUIREMENTS; THAT THEY ARE ALWAYS AVAILABLE; OR THAT THEY ACCURATELY REPRESENT SALONS OR SALON SPACES. WE EXPRESSLY DISCLAIM ANY OBLIGATION TO CORRECT ERRORS, EVEN THOSE OR WHICH WE ARE AWARE, AND MAY CHOOSE TO DISCONTINUE OPERATION OF THE PLATFORM OR SERVICES, OR FEATURES OF EITHER, AT ANY TIME.
Limitations of Liability
UNDER NO CIRCUMSTANCES OR ANY LEGAL THEORY WILL COMPANY OR ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, DISTRIBUTORS, VENDORS, ATTORNEYS, OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, GENERAL, COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, RELIANCE OR OTHERWISE), INJURY, CLAIM OR LIABILITY OF ANY KIND OR CHARACTER BASED UPON OR ARISING FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM OR SERVICES, OR SALON SPACES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF YOU ARE DISSATISFIED WITH THE PLATFORM OR SERVICES, OR ANY CONTENT CONTAINED THEREIN, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND SERVICES. THE LIMITATION OF LIABILITY SET FORTH ABOVE APPLIES TO THE EXTENT PERMITTED BY LAW.
- You (the “Indemnifying Party”) will indemnify, defend and hold Company and its agents, directors, shareholders, members, partners, managers, officers, employees, information providers, distributors, vendors, attorneys, or affiliates (collectively, “Indemnified Party”) harmless from and against any and all liabilities, damages, costs and expenses (including all legal and professional fees) (“Losses”) arising out of or relating to any claim, action, suit, complaint or other proceeding (which are hereinafter collectively referred to as “Claim(s)”) brought by a third party based in whole or in part upon any of the following: (a) your use of or any damages you cause to Salon Spaces; (b) Content you provide through the Platform; (c) your failure to comply with Laws; (d) your provision of information to us that is inaccurate or incomplete, (e) your breach of any of your obligations under this Agreement, and (f) any contract or other agreement between you and any other entity other than through the Platform.
- When seeking indemnification, the Indemnified Party shall: 1) promptly notify the Indemnifying Party in writing of the claim, suit, or proceeding for which indemnification is sought, 2) upon Indemnifying Party’s request, permit the Indemnifying Party to control the defense and settlement negotiations of the claim, suit or proceeding, 3) cooperate with the Indemnifying Party as reasonably requested to assist in the defense and/or settlement of the claim, suit or proceeding, and 4) have the right to provide for its own separate defense at its own expense. Notwithstanding the foregoing, the failure to give notice to the Indemnifying Party within a reasonable time of the commencement of any claim under this Section will not relieve the Indemnifying Party of any liability to the Indemnified Party under this Section unless such failure materially prejudices the Indemnifying Party’s ability to defend such claim.
You will acquire and maintain all insurance as required by Law and suitable to you or your business. You are solely responsible for understanding and evaluating what insurance is appropriate to cover damage, loss, injury, legal liability, and other harm specific to you, your business, your Customers, third parties and the Salon Space or amenities, and deciding what coverage, limits and providers are appropriate for you.
Termination and Termination
- Term. This Agreement shall commence upon your first use of the Platform and shall continue thereafter unless terminated pursuant to its terms (the “Term”).
- Termination By Artist.You consent to this Agreement when you first access or use the Platform or Services, and your continued use of the Platform and Services constitutes your ongoing consent to this Agreement as amended from time to time. You may terminate this Agreement for any or no reason by closing your Account with us, however this will not immediately terminate any surviving rights or obligations that you or we may have. These include without limitation any obligations to pay for Bookings, to honor any Bookings made before termination, or to pay Fees, Taxes or Fines due; or any liabilities that you incurred prior to termination.
- Suspension or Termination by Company.We may suspend your Account (including your ability to communicate with other users, or complete a Booking), or terminate this Agreement and your Account at any time for any or no reason including, without limitation, if: (i) we reasonably believe that use of your Account poses a risk to Company, you, other users, or third parties, (ii) you or others on your behalf have engaged in actual or potential fraud, (iii) you have failed to respond to communications from us or other users, or (iv) we reasonably believe that you have failed to comply with this Agreement or applicable Law.
- Right to Amend. We may amend or modify this Agreement at any time by posting the modified Agreement on the Website, sending you a copy via email, or otherwise communicating the amendment to you through the Platform. Your continued use of the Platform or Services after we amend or modify this Agreement constitutes your consent to the revised Agreement. If you do not agree to the revised Agreement, you must close your Account and terminate this Agreement.
- Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New York without giving effect to its choice or conflict of law provisions. In accordance with its terms, all disputes and/or legal proceedings related to the Agreement shall be brought and maintained exclusively in New York, New York, and the parties agree to personal jurisdiction, venue and convenient forum therein.
- Dispute Resolution. The parties agree that any dispute between them arising under this Agreement, shall first be elevated via email correspondence for informal discussion and resolution of the dispute, for a period of thirty (30) days. Any dispute not resolved by that informal process shall be submitted exclusively to binding arbitration in accordance with the rules of the American Arbitration Association (AAA) by a single arbitrator appointed by AAA. The venue of such arbitration and the governing law of the arbitration shall be as otherwise set forth in this Agreement. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN THE DISPUTE RESOLUTION LOCATION. The prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs in the arbitration and in enforcing the arbitrator’s decision in a court of law, unless otherwise ordered by the arbitrator. The arbitrator shall have the power to enter any award that could be entered by a judge of competent jurisdiction sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, damages excluded from the terms of this Agreement as described below or any other damages which are not compensatory, even if permitted under applicable law. THE PARTIES UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT.
- Independent Contractors.The parties agree that each is an independent contractor and the Agreement does not create any employment relationship between the parties for taxation or any other purpose. Each party shall be responsible for the payment of compensation (including provision for employment taxes, workmen's compensation and any similar taxes) associated with the employment of its personnel. Neither party shall have the right to bind the other to any agreement with a third party, or to incur any obligation or liability on behalf of the other party.
- Assignment. Artist may not assign or transfer this Agreement without the prior written consent of Company. Any attempt to assign this Agreement without such consent will be null and void. Company may freely assign or otherwise transfer this Agreement to a third party without restriction or Artist consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each of the parties and their respective successors and permitted assigns, and shall not otherwise give rise to any rights to parties other than the immediate parties hereto. Any act in derogation of the foregoing shall be null and void.
- No Third Party Beneficiaries. Nothing in the Agreement shall create any rights in any third party beneficiaries, and neither party has any obligation to any third party by virtue of the Agreement.
- Entire Agreement. This Agreement, together with any addenda, exhibits or other attachments, constitutes the entire Agreement between the parties in relation to this engagement. Any revision or modification of the Agreement shall be effective only if it refers to the Agreement, is in writing, and is signed by an authorized representative of both parties. Facsimile signatures are effective to bind the signing party and admissible in any court and/or for any lawful purpose.
- Severability. If any provision of the Agreement is deemed unenforceable or in violation of any applicable law, such provision shall to such extent be severable and be deemed null and void, and the remainder of the Agreement shall remain in full force and effect.
- No Waiver. The failure of either party to insist upon the performance of any provision herein or to exercise any right or privilege granted to it hereunder will not be construed as a waiver of such provision or any provisions herein, and the same will continue in full force. The various rights and remedies given to or reserved by either party herein or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered to condone any continuing or subsequent breach of the same provision.
- Force Majeure. Company is not responsible or liable for nonperformance caused by telecommunications failures, nonperformance of vendors, fires or other acts of nature, strife or acts of political discord, or other events outside its reasonable control (each a “Force Majeure”).
- Headings and Recitals. The paragraph headings in the Agreement are to be given no legal effect. The preamble recitals are included as an integral part of this Agreement and are to be given full legal effect.
- Survival. The following provisions of this Agreement and all other provisions necessary to their interpretation or enforcement, will survive indefinitely after the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the parties as applicable: Sections 1, 2.3, 2.4, 5.2, 6, 7 and 10.