Vagaro Customer Participation Agreement

The terms of this Participation Agreement (“Terms”) are provided by Vagaro, Inc. and its affiliates (“Company”, “we”, “our” or “us”). These Terms apply to an individual customer (“you”) and your access and use of (1) our websites located at https://www.vagaro.com/pro, and all successor links and associated web pages, websites, and social media pages (the “Sites”), (2) mobile applications that may be downloaded to your smartphone or tablet (each an “App”), (3) online services (collectively (1) to (3), the “Services”) and (4) products accessible via the Site and the App, such as point of sale devices (the “Products”). For clarity, these Terms apply whether or not you create an account with us. If you are an individual customer of Company and not accessing or using our Products or Services on behalf of a business customer of Company, please see the Individual Customer Terms of Services https://www.vagaro.com/pro/user-agreement; these Terms do not apply to you.

YOU AND COMPANY AGREE TO RESOLVE MOST DISPUTES SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. IF YOU DO NOT WISH TO ARBITRATE DISPUTES WITH COMPANY, YOU MAY OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 11(j). If you do not agree to these Terms, you may not use or purchase our Products or Services.

For information about how we collect, use, disclose, and otherwise process information about you, please see our privacy policy https://www.vagaro.com/pro/privacy.

From time to time, we may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Products or Services, including the Product Service Terms Addendum, https://www.vagaro.com/pro/vagaro-customer-participation-agreement. If there is a conflict between these Terms and those additional terms, the additional terms will control for that conflict.

We may make changes to these Terms from time to time. If we make changes, we will notify you by revising the date at the top of these Terms. If we make material changes, we will provide you with additional notice (such as by adding a statement to our websites or sending you a notification). Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.

1 Eligibility, Accounts, and Third Parties

(a) Authorization. If you use our Products or Services on behalf of another person or entity: (i) you agree to these Terms on behalf of yourself and that person or entity; (ii) you represent that you are authorized to agree to these Terms on that person’s or entity’s behalf; and (iii) all references to “you” throughout these Terms other than this sentence will include you and that person or entity.

(b) Jurisdiction. You may only use our Products and Services in jurisdictions authorized by Company. Use of our Products and Services are currently authorized only in the United States, Canada, Australia and United Kingdom. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

(c) Account. Although these Terms apply regardless of whether you create or use an account, you may create an account with Company in order to use many core features of our Services and Products. You may not share or permit others to use your account credentials. You will promptly update any information contained in your account if it changes. You must use a strong password for your account that is unique to our Services and not used by you in any other online service. You must maintain the security of your account, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.

(d) Authorized Users. You are solely responsible and liable for any authorized users that you allow to use the Products or Services on your behalf, including their activity in connection with the Products or Services.

(e) Third Parties.

2 User Content

(a) User Content.

(b) Prohibited User Content. You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:

• Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;

• Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;

• May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;

• Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;

• Impersonates, or misrepresents your affiliation with, any person or entity;

• Contains any unsolicited promotions, political campaigning, advertising, or solicitations;

• Contains any private or personal information of a third party without such third party’s consent;

• Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or

• In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Company or others to any harm or liability of any type.

(c) Remedies. We expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. That said, we may:

• Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;

• Terminate or suspend your access to all or part of the Services, temporarily or permanently, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;

• Take any action with respect to your User Content that is necessary or appropriate, in Company’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect Company’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and

• As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Services.

3 Prohibited Conduct

You will not use our Products or Services if you are not eligible to use our Products or Services in accordance with Section 1 and will not use our Products or Services other than for their intended purpose. Further, you will not:

• Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;

• Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;

• Use or attempt to use another user’s account or information without authorization from that user and Company;

• Represent to any Third Party that you or your personnel are Company or acting on behalf of Company;

• Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;

• Submit illegitimate or inauthentic ratings or reviews;

• Sell or resell our Products or Services;

• Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;

• Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;

• Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;

• Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;

• Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that Company grants to the operators of public search engines permission to use spiders to copy materials from our websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Company reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;

• Develop or use any applications or software that interact with our Services without our prior written consent;

• Send, distribute, or post spam, chain letters, or pyramid schemes; or

• Use our Products or Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.

4 Product and Service Listings

5 Terms of Sale

The terms in this Section 5 apply to your purchase of a subscription to our Services and Products from us. You’ll see in this section that some of the terms only apply if you purchase a subscription to our Services and some of the terms only apply if you purchase Products from us.

(a) General

(b) Purchase of Services

(c) Purchase of Products

6 Promotions

Any sweepstakes, contests, raffles, surveys, games, or other promotions made available through the Services may be governed by rules that are separate from these Terms. If you participate in any promotions, you agree to be bound by and comply with the applicable rules. If the rules for a promotion conflict with these Terms, the promotion rules will govern.

7 Intellectual Property

8 Repeat Infringer Policy; Copyright Complaints

Designated Agent: Adam Zachs
Address: 4430 Rosewood Drive, Suite 500
Pleasanton, CA 94588
Telephone Number: (925)727-3345
Email Address: legal@vagaro.com

Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Products or Services is infringing, you may be liable to Company for certain costs and damages.

9 Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Company and our affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “Company Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Indemnifiable Claims”) arising out of or related to (a) your access to or use of the Products or Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); (e) your interaction with Third Parties, provision of Your Services, or Your Terms, or (e) your conduct in connection with the Services. You will promptly notify Company Parties of any third-party Indemnifiable Claims, cooperate with Company Parties in defending such Indemnifiable Claims, and pay all fees, costs, and expenses associated with defending such Indemnifiable Claims (including attorneys’ fees). The Company Parties will have control of the defense or settlement, at Company's sole option, of any third-party Indemnifiable Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Company or the other Company Parties.

10 Disclaimers

Your use of our Products and Services and any content or materials provided therein or therewith is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Products, Services, and any content or materials provided therein or therewith are provided “as is” and “as available” without warranties of any kind, either express or implied. Company disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Company does not represent or warrant that our Products or Services or any content provided therein or therewith are accurate, complete, reliable, current, or error-free or that access to our Products or Services or any content provided therein or therewith will be uninterrupted. You assume the entire risk as to the quality and performance of the Products and Services and any content provided therein or therewith. For clarity, Company is not liable for Your Services or Third Parties.

11 Limitation of Liability

(a) To the fullest extent permitted by applicable law, Company and the other Company Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Company or the other Company Parties have been advised of the possibility of such damages.

(b) The total liability of Company and the other Company Parties for any claim arising out of or relating to these Terms, our Products or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use the Product or Services giving rise to the claim.

(c) The limitations set forth in this Section 10 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Company or the other Company Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

(d) To the fullest extent permitted by applicable law, you release Company and the other Company Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

12 Dispute Resolution; Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND COMPANY TO ARBITRATE CERTAIN DISPUTES AND LIMITS THE MANNER IN WHICH YOU AND COMPANY CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND COMPANY FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND COMPANY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

YOU AND COMPANY EACH ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF EITHER PARTY’S CLAIMS.

FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 11(j), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.

(a) Claims This Section Applies To. This Section 11 applies to all Claims between you and Company. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed in Section 11(c), below) between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either party wishes to seek legal recourse and that arises from or relates to these Terms, the Products or the Services, including any claims related to the use or operation of the Products or the Services, the purchase of any products or services made available through the Services, all privacy or data security claims, and all claims related to the validity, enforceability, or scope of this Section or any portion of it.

(b) Informal Dispute Resolution Before Arbitration. If you believe you have a Claim against Company or if Company believes it has a Claim against you, you and Company will first attempt to resolve the Claim informally to try to resolve the Claim more quickly and reduce costs for both parties. You and Company will make a good-faith effort to negotiate the resolution of any Claim for 45 days (“Informal Resolution Period”), from the day either party receives a written notice of a dispute from the other party that satisfies the requirements of this Section 11(b) (a “Claimant Notice”). The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. The Informal Resolution Period may be extended by the parties’ mutual written agreement.

You must send any Claimant Notice to Company by certified mail, addressed to Vagaro, Inc., Attn: Legal Department, 4430 Rosewood Drive, Suite 500, Pleasanton, CA 94588 or by email to legal@vagaro.com. Company will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Company. The party sending a Claimant Notice (the “Claimant”) will ensure it includes: (i) the Claimant’s name, address, email address, and telephone number; (ii) a description of the nature of and basis for the Claim, including the date(s) on which the Claim arose and the facts on which the Claim is based; (iii) the specific relief sought; and (iv) a personally signed statement from the Claimant themselves (and not their counsel) verifying the accuracy of the contents of the Claimant Notice.

No arbitration demand (“Arbitration Demand”) may be filed or proceed before a Claimant Notice is sent and the Informal Resolution Period has concluded. If you or Company files an Arbitration Demand without complying with the requirements in this Section 11, including the requirement to wait for the Informal Resolution Period to conclude, the other party may seek relief from a court to enjoin such filing and for such other relief as the court deems proper. The prevailing party in any such action shall be entitled to recover its costs and reasonable attorneys’ fees incurred in seeking such relief.

To facilitate the parties’ efforts to reach an efficient resolution of any Claim, the applicable statutes of limitation will be tolled, and all deadlines associated with arbitration fees deferred, from the commencement of the Informal Dispute Resolution Process through the date when suit or arbitration may be filed under these Terms.

(c) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property rights of you or Company, including any disputes in which you or Company seek injunctive or other equitable relief for the alleged unlawful use of your or Company’s intellectual property (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 11(b) must be resolved by a neutral arbitrator through final and binding arbitration rather than in court. Claims subject to binding arbitration include, without limitation, disputes arising out of or relating to the interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of this arbitration provision or any portion of it.

(d) Binding Individual Arbitration. Except as otherwise expressly permitted by this Section 11, any Claim may be resolved only through binding individual arbitration conducted by the American Arbitration Association (the “AAA”),https://adr.org/, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”). If you are a “Consumer,” meaning that you only use the Products and the Services for personal, family, or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules, as modified by these Terms (the “Rules”), will apply to Claims between you and Company. If you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, as modified by these Terms, will apply to Claims between you and Company.

These Terms affect interstate commerce, and the enforceability of this Section 11 will be substantively and procedurally governed by the FAA to the maximum extent permitted by law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. As allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Company to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).

(e) Arbitration Procedure and Location. You or Company may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing an Arbitration Demand with AAA in accordance with the Rules.

Instructions for filing a demand with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to Company by certified mail addressed to Vagaro, Inc., Attn: Legal Department, 4430 Rosewood Drive, Suite 500, Pleasanton, CA 94588 or by email to legal@vagaro.com. Company will send any demand for arbitration to you by certified mail or, if no physical address has been provided, by email using the contact information you have provided to Company.

The arbitration will be conducted by a single arbitrator in the English language. You and Company both agree that the arbitrator will be bound by these Terms.

For Claims in which the Claimant seeks less than USD $10,000, the arbitrator will decide the matter based solely on written submissions, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the Claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is determined to be necessary, the site of any in-person hearing will be determined by the applicable Rules.

The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and Company agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.

Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.

(f) Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.

(g) Frivolous or Improper Claims. To the extent permitted by applicable law, a Claimant must pay all costs incurred by the defending party, including any attorney’s fees and arbitration fees, related to a Claim if an arbitrator determines that: (i) the Claim was not warranted by existing law or by a nonfrivolous argument; (ii) the factual contentions for the Claim lacked evidentiary support when filed or were unlikely to have evidentiary support after a reasonable opportunity for further investigation; or (iii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.

(h) Confidentiality. If you or Company files a Claim in arbitration, you and Company agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of any discovery in the arbitration. You and Company agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.

(i) Mass Disputes. If 25 or more Claimant Notices are received by a party that raise similar Claims and have the same or coordinated counsel, these will be considered a “Mass Dispute” and the provisions of this Section 11(i) will apply to all such Claimant Notices. A Claimant Notice in a Mass Dispute may proceed to arbitration only as set forth below.

If complaints based on Claimant Notices that were released from the arbitration requirement are filed in court, the Claimants may seek class treatment, although to the fullest extent allowed by applicable law, the putative classes must be limited to those Claimants in the Mass Dispute whose claims remain unresolved, and for which a Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis and may raise any other defenses available under applicable law.

If the mediation process concludes with fewer than 100 Claimant Notices remaining or if no timely election to opt out of arbitration is made, the AAA will randomly select 30 Claimant Notices (or the total remaining if less than 30) that comply with Section 11(b) to proceed in arbitration in the same manner as described in Section 11(i)(ii), above. Once such arbitrations have concluded, the parties will repeat this process until all Claimant Notices in the Mass Dispute have been resolved.

(j) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted a version of these Terms by emailing legal@vagaro.com. To be effective, the opt-out notice must be on your own behalf and include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 13(b).

(k) Rejection of Modifications to this Section. You may reject any change we make to this Section 11 (except changes to notice addresses) as to you, by emailing legal@vagaro.com within 30 days of the date of the change. To be effective, you must send the notice or rejection on your own behalf, and you must include your full name, mailing address, and email address. The notice must clearly indicate your intent to reject changes to Section 11. You may reject changes to Section 11 only as a whole. You may not reject only certain changes to Section 11. If you reject changes made to Section 11, the most recent version of Section 11 that you have not rejected will continue to apply.

(l) Two Years to Assert Claims. To the extent permitted by law, any Claim by you or Company against the other must be included in a Claimant Notice within two years after such Claim arises; otherwise, the Claim is permanently barred, which means that you or Company will no longer have the right to assert that Claim.

(m) Severability. If any portion of this Section 11 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable: (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 11 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 11; and (iii) to the extent that any claims may proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 11 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 11 will be enforceable.

13 Modifying and Terminating Our Products or Services

We reserve the right to: modify our Services or to suspend or terminate providing all or part of our Products or Services at any time; charge, modify, or waive any fees required to use the Products or Services; or offer opportunities to some or all end users of the Products or Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Products or Services, such as by sending an email or providing a notice through our Products or Services. All modifications and additions to the Products and Services will be governed by the Terms, unless otherwise expressly stated by Company in writing. You also have the right to stop using our Products and Services at any time, and you may terminate these Terms by ceasing use of our Products and Services. We are not responsible for any loss or harm related to your inability to access or use our Services.

14 General

(a) Severability. Except as stated in Section 11(m), if any portion of these Terms is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms, (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms, and (iii) the unenforceable or unlawful provision may be revised to the extent required to render these Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve these Terms and the intent of these Terms to the fullest possible extent.

(b) Governing Law. Any dispute, claim, or controversy arises from or relates to these Terms, the Products or the Services will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. federal Law, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute, claim, or controversy arises from or relates to these Terms or our Products and Services that is not subject to arbitration pursuant to Section 11 that cannot be heard in small claims court will be resolved exclusively, in the County of Los Angeles, California. You and Company waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section will not apply to you to the extent that local law conflicts with this section.

(c) Miscellaneous. All sections of these Terms that, by their nature, should survive termination will survive termination. Company’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.

(d) Contact. If you have a question or complaint regarding the Products or Services, please send an email to support@vagaro.com. You may also contact us by writing to 4430 Rosewood Drive, Suite 500, Pleasanton, CA 94588, or by calling us at 1-800-919-0157. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

15 Additional Terms Applicable to Mobile Devices

The following terms apply if you install, access, or use our mobile application for any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).

(a) Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. Subject to these Terms, Company, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple Media Services Terms and Conditions as of the date you download the App, and in the event of any conflict, the Usage Rules in those terms will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.

(b) Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.

(c) Maintenance and Support. You and Company acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.

(d) Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the iOS App. As stated in the Terms, we provide the iOS App without warranty of any kind. However, in the event of any failure of the iOS App to conform to any applicable warranty not fully disclaimed, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App. The parties acknowledge that to the extent that there are any applicable warranties not fully disclaimed, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Company.

(e) Product Claims. Subject to the Terms, you and Company acknowledge that as between Apple and Company, Company, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (i) product liability claims, (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.

(f) Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, subject to the Terms, Company, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.

(g) Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to:

Vagaro, Inc.
4430 Rosewood Drive, Suite 500
Pleasanton, CA 94588
legal@vagaro.com

(h) Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services.

(i) Third-Party Beneficiary. Apple and its subsidiaries are third-party beneficiaries of this Section 14 of the Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 15 of the Terms against you as a third-party beneficiary thereof.

Product service terms addendum

The terms of this Product Service Terms Addendum (“Service Terms”) are provided by Vagaro, Inc. and its affiliates (“Company”, “we”, “our” or “us”) and are incorporated into the Participation Agreement https://www.vagaro.com/pro/vagaro-customer-participation-agreement (“Terms”). Capitalized terms not otherwise defined in these Service Terms will have the meaning set forth in the Terms. All services described in these Service Terms shall constitute “Services” as defined under the Terms. If you are an individual customer of Company and not accessing or using our Products or Services on behalf of a business customer of Company, please see the Individual Custom Terms of Services https://www.vagaro.com/pro/user-agreement; these Service Terms do not apply to you.

1 E-Prescription Service

This Section applies if you subscribe to or otherwise use our electronic prescription services (“E-Prescription Services”).

(a) E-Prescription Vendor. The E-Prescription Services and functionality are provided to you through an independent third-party vendor (“E-Prescription Vendor”) and is third-party beneficiary of terms related to the E-Prescription Services. The E-Prescription Vendor facilitates all creation, ordering, viewing, storage, routing and processing of electronic prescriptions between you and pharmacies for individual consumers. The E-Prescription Services do not replace written records or professional judgment and nothing provided in the E-Prescribing Services is a substitute for medical your medical knowledge, expertise, skill. As a condition of accessing the E-Prescription Services, you will be required to sign up directly, or create an account, with the E-Prescription Vendor, and to agree to the E-Prescription Vendor terms and conditions (“E-Prescription Vendor Terms”). The E-Prescription Vendor Terms in no way limit your obligations under these Service Terms. Your access to the E-Prescription Services through our Services does not indicate that we endorse, recommend, or place any guarantees on the E-Prescription Vendor’s services. With the exception of issues concerning access to the E-Prescription Services through our Services, any issues related to the prescription order, transfer, filling, dispensing or delivery issues must be brought to the attention of our E-Prescription Vendor, the applicable prescriber, or pharmacy.

(b) Prescription Information: You shall not rely on us or our systems for the storage, maintenance or retrieval of any prescription information or related health data in connection with your use of the E-Prescription Services and acknowledge we do not assert, maintain or have any control over the services rendered by our E-Prescription Vendor. You represent and warrant that you will (i) maintain all electronic prescription records in accordance with applicable law and the privacy and security of all electronic prescription records in accordance with applicable law and (ii) not transfer to us or rely on us to access or maintain any electronic prescription records. You further acknowledge that the E-Prescription Vendor is responsible for compliance with DEA regulations governing electronic prescription transmission under 21 CFR Part 1311 and that we act solely as a conduit facilitating access to the E-Prescription Vendor’s systems. You agree to implement and maintain reasonable administrative, physical and technical safeguards, to protect the access to the E-Prescribing Services and ensure security of prescription data transmitted. You remain solely responsible for ensuring that your systems and workflows meet all applicable standards under HIPAA and other relevant statutes.

(c) Representations and Warranties: You represent and warrant that:

(d) Liability. You are solely responsible and liable for your use of the E-Prescription Services and for the accuracy, integrity and legality of all prescription records submitted through the E-Prescription Services.

(d) Suspension related to E-Prescription Services. We, including the E-Prescription Vendor, reserve the right to suspend or revoke your access to the E-Prescription Services at any time and without prior notice if we determine, in our sole discretion, that you have violated any applicable law, engaged in fraudulent activity, failed to implement reasonable safeguards or otherwise compromised the security, compliance, or operational integrity of the systems used to support or route E-Prescription transactions.

(f) Indemnification related to E-Prescription Services. You agree to defend, indemnify, and hold us harmless from any and all claims, liabilities, losses, damages, penalties, judgments, and costs (including reasonable attorneys’ fees) arising from or relating to: (i) your breach of these E-Prescription Vendor Terms or any applicable law or regulation; (ii) any false or misleading representations or warranties made by you; or (iii) your use of the E-Prescription Services in a manner that causes harm to any patient, prescriber, pharmacy, or third party.

2 MySite Service

This Section applies if you subscribe to or otherwise use the MySite Service. Through the MySite Service, we may help you purchase or obtain domain names or develop your own website (“Your Site”).

(a) Domain Name.

(b) Website Development. Upon your request and with reasonable consultation with you, we may create and develop information, content and materials to be displayed on Your Site, including images and messages (“Site Content”). For clarity, Site Content excludes information, content or materials that you provide us or that you solely develop. You agree that we own all right, title and interest in and to the Site Content. To the extent you obtain any rights to any Site Content, you hereby assign to us all right, title and interest in and to such Site Content and you hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of any Site Content. During the term of your subscription to the MySite Service, we hereby grant you a non-exclusive, revocable license to publicly display, publish, and reproduce the Site Content. When your subscription to the MySite Service terminates, your license to the Site Content will terminate and you must delete all copies of the Site Content.

(c) Liability. You are solely responsible and liable for Your Site. To the fullest extent permitted by applicable law, you will indemnify Company Parties from Indemnifiable Claims arising from Your Site. You alone are responsible for Your Content. "Your Content" means Content that You submit or transmit to or through the Site, such as ratings, reviews, compliments, invitations and information that You display as part of Your account profile. You assume all risks associated with Your Content, including, but not limited to, anyone's reliance on its accuracy, quality, reliability, completeness or usefulness, or any disclosure by You of information in Your Content that makes You personally identifiable. You represent that You own, or have the necessary permissions to use, and authorize the use of, Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Vagaro. You may expose Yourself to liability if, for example, Your Content violates any third-party right, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right; contains material that is false, intentionally misleading, or defamatory; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.

3 Branded Application Service

This Section applies if you subscribe to or otherwise use the Branded Application Service. Through the Branded Application Service, we help you develop your mobile application (“Your App”) and to make Your App available on mobile application stores.

(a) Your App Development. We will help you develop Your App. You own all right, title and interest in Your App. You hereby grant Company a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid and sublicensable license to install, use, reproduce, distribute, publicly display, and prepare derivative works of Your App as reasonably necessary to provide the Branded Application Service.

(b) Mobile App Store Submissions. We will help you submit Your App to certain mobile application stores upon your invitation to us as an Admin User of Your App. By inviting us to help submit Your App to certain mobile application stores, you acknowledge and consent to us being listed as an Admin User to Your App. You will provide accurate information and provide reasonable cooperation in Your App submission process. When your subscription to the Branded Application Service terminates, you must remove us as an Admin User. We are not liable (i) if submission for Your App to any mobile application store is rejected or (ii) for your failure to remove us as a user once your subscription terminates.

(c) Liability. You are solely responsible and liable for Your App, including surfacing any required mobile application store terms to users of Your App. To the fullest extent permitted by applicable law, you will indemnify Company Parties from Indemnifiable Claims arising from Your App and the use thereof.

4 Brand and Logo Design Service

This Section applies if you subscribe to, purchase or otherwise use the Brand and Logo Design Service. Through the Brand and Logo Design Service, we help you develop a logo or trademark (“Your Mark”).

(a) Your Mark Development. With reasonable consultation with you, we will help you develop Your Mark. You own all rights, title and interest in Your Mark. You hereby grant Company a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid and sublicensable license to install, use, reproduce, distribute, publicly display, and prepare derivative works of Your Mark as reasonably necessary to provide the Brand and Logo Design Services.

(b) Liability. You are solely responsible and liable for Your Mark and the use thereof. To the fullest extent permitted by applicable law, you will indemnify Company Parties from Indemnifiable Claims arising from Your Mark.

4 Vagaro Connect & Vagaro Web Platform

This Section applies if you subscribe to or otherwise use the Vagaro Connect Service. Through the Vagaro Connect Service, we provide you a platform to send messages to Third Parties.

(a) Vagaro Connect App. To use the Vagaro Connect Service, you must download the Vagaro Connect App.

(b) Your Messages. The messages that you send to Third Parties and the messages that Third Parties send to you through the Vagaro Connect Service shall constitute “User Content” as defined under the Terms.

5 Vagaro Merchant

This Section applies if you subscribe to or otherwise use our third-party payment processing services (“Vagaro Merchant Services”).

(a) Vagaro Merchant Services Vendor. Vagaro Merchant Services are supported and managed by third-party vendors (“Merchant Services Vendors”). The Merchant Services Vendors provide payment processing services so that you may accept credit cards, mobile payments, and contactless transactions from individual consumers. To access Vagaro Merchant Services, you must first enroll with Vagaro, who will determine whether to accept your enrollment. Upon acceptance, Vagaro will submit your information to the applicable Merchant Services Vendor for their review and approval. You will be required to agree to the Merchant Services Vendors' terms and conditions (“Merchant Services Vendor Terms”), which will be presented during the enrollment process. The Merchant Services Vendor Terms in no way limit your obligations under these Service Terms. Your access to the Vagaro Merchant Services through our Services does not infer that we endorse, recommend, or place any guarantees on the Vagaro Merchant Services. Any issues, errors, or complaints regarding the Vagaro Merchant Services should be directed to Vagaro, who will work with the Merchant Services Vendors to resolve such matters.

(b) Payment. You authorize Company, and Company reserves the right, to debit your Merchant Account for any fees due or payable for your use or receipt of the Vagaro Merchant Services, including any subscription fees, charges, or other amounts that are past-due, if Company is unable to successfully obtain payment for all amounts due and payable under these Service Terms from your primary payment method on file with Company. Such debits may include, without limitation, subscription fees, service fees, transaction fees, chargebacks, refunds, and any other amounts owed by you to Vagaro and/orVagaro Merchant Services. You agree to maintain sufficient funds in the Merchant Account to cover all such debits and acknowledge that Vagaro may exercise this right at any time amounts become due.

(c) Restrictions. Vagaro reserves the right to prohibit or restrict your ability to offer, and your customers’ ability to use the Vagaro Merchant Services at any time for any reason, without notice to you, or to request additional information before you can use or continue to use the Vagaro Merchant Services.

(d) Liability. Vagaro is not a party to any agreement between you and the Merchant Services Vendors and expressly disclaims all liability with respect to such agreements. You are solely responsible and liable for your use of the Vagaro Merchant Services. To the fullest extent permitted by applicable law, you will indemnify Company Parties from Indemnifiable Claims arising from your use of the Vagaro Merchant Services.

7 Vagaro Payroll

This Section applies if you subscribe to or otherwise use our third-party payroll services (“Vagaro Payroll Services”).

(a) Vagaro Payroll Services Vendor. Vagaro Payroll Services are supported and managed by third-party vendors (“Payroll Services Vendors”). The Payroll Services Vendors provide cloud-based payroll services that automate employee payments, tax filings, and compliance for businesses. As a condition of accessing the Vagaro Payroll Services, you will be required to sign up directly, or create an account, with our Payroll Services Vendors, and agree to the Payroll Services Vendors’ terms and conditions (“Payroll Services Vendor Terms”). If you choose to enable such Vagaro Payroll Services, you are contracting with the applicable Payroll Services Vendor, and eligibility determinations are governed by the applicable Payroll Services Vendor Terms, which are presented to you during sign-up. The Payroll Services Vendor Terms in no way limit your obligations under these Service Terms. Your access to the Vagaro Payroll Services through our Services does not infer that we endorse, recommend, or place any guarantees on the Vagaro Payroll Services. With the exception of issues or complaints concerning access to the Vagaro Payroll Services through our Services, any other issues or complaints must be brought to the attention of the Payroll Services Vendors.

(b) Payment. You authorize Company, and Company reserves the right, to debit your Merchant Account for any fees due or payable for your use or receipt of the Vagaro Payroll Services, including any subscription fees, charges, or other amounts that are past-due, if Company is unable to successfully obtain payment for all amounts due and payable under these Service Terms from your primary payment method on file with Company. Such debits may include, without limitation, subscription fees, service fees, transaction fees, chargebacks, refunds, and any other amounts owed by you to Vagaro in connection with the Vagaro Payroll Services. You agree to maintain sufficient funds in the Merchant Account to cover all such debits and acknowledge that Vagaro may exercise this right at any time amounts become due.

(c) Restrictions. Vagaro reserves the right to prohibit or restrict your ability to offer, and your employees’ and contractors’ ability to use the Vagaro Payroll Services at any time for any reason, without notice to you, or to request additional information before you can use or continue to use the Vagaro Payroll Services.

(d) Liability. Vagaro is not a party to any agreement between you and the Payroll Services Vendors and expressly disclaims all liability with respect to such agreements. You are solely responsible and liable for your use of the Vagaro Payroll Services. To the fullest extent permitted by applicable law, you will indemnify Company Parties from Indemnifiable Claims arising from your use of the Vagaro Payroll Services.

8 Vagaro Capital

This Section applies if you otherwise offer your customers our flexible business finance solutions (“Vagaro Capital Services”).

(a) Vagaro Capital Services Vendor. Vagaro Capital Services are supported and managed by third-party vendors (“Capital Services Providers”). The Capital Services Providers provide flexible business finance solutions, such as revenue-based funding, to small and medium-sized enterprises to help them access working capital quickly and efficiently. As a condition of accessing the Vagaro Capital Services, you will be required to sign up directly, or create an account, with our Capital Services Providers, and agree to the Capital Services Providers’ terms and conditions (“Capital Services Provider Terms”). By enrolling with the Provider, you explicitly authorize us to share your processing activity with the Provider and to allocate your merchant payments between you and the Provider according to the terms you accept. If you choose to enable such Vagaro Capital Services, you are contracting with the applicable Capital Services Provider, and eligibility determinations are governed by the applicable Capital Services Provider Terms, which are presented to you during sign-up. The Capital Services Provider Terms in no way limit your obligations under these Service Terms. Your access to the Vagaro Capital Services through our Services does not infer that we endorse, recommend, or place any guarantees on the Vagaro Capital Services. With the exception of issues or complaints concerning access to the Vagaro Capital Services through our Services, any other issues or complaints must be brought to the attention of the Capital Services Providers.

(b) Restrictions. Vagaro reserves the right to prohibit or restrict your ability to offer, and your ability to accept offers from the Vagaro Capital Services at any time for any reason, without notice to you, or to request additional information before you can use or continue to use the Vagaro Capital Services.

(c) Liability. Vagaro is not a party to any agreement between you and the Capital Services Providers and expressly disclaims all liability with respect to such agreements. You are solely responsible and liable for your use of the Vagaro Capital Services. To the fullest extent permitted by applicable law, you will indemnify Company Parties from Indemnifiable Claims arising from your use of the Vagaro Capital Services.

9 Vagaro Pay Later

This Section applies if you otherwise offer your customers our flexible buy now, pay later solution (“Vagaro BNPL”).

(a) Vagaro BNPL Vendor. Vagaro BNPL is supported and managed by third-party vendors (“BNPL Vendors”). The BNPL Vendors provide buy now, pay later financing solutions that allow consumers to make purchases and pay for them over time through installment plans. As a condition of accessing Vagaro BNPL, you will be required to sign up directly, or create an account, with our BNPL Vendors, and agree to the BNPL Vendors’ terms and conditions (“BNPL Vendor Terms”). If you choose to offer Vagaro BNPL, you are contracting with the applicable BNPL Vendor, and eligibility determinations are governed by the applicable BNPL Vendor Terms, which are presented to you during sign-up. The BNPL Vendor Terms in no way limit your obligations under these Service Terms. Your access to Vagaro BNPL through our Services does not infer that we endorse, recommend, or place any guarantees on the Vagaro BNPL. If you are a consumer using Vagaro BNPL, you must contact the BNPL Vendors directly for any issues or complaints. If you are a business offering Vagaro BNPL, you should contact Vagaro for all issues or complaints related to the BNPL service.

(b) Restrictions. Vagaro reserves the right to prohibit or restrict your ability to offer, and your customers’ ability to make transactions using Vagaro BNPL at any time for any reason, without notice to you, or to request additional information before you can use or continue to use Vagaro BNPL.

(c) Liability. Vagaro is not a party to any agreement between you and the BNPL Vendor and expressly disclaims all liability with respect to such agreements. You are solely responsible and liable for your use of Vagaro BNPL. To the fullest extent permitted by applicable law, you will indemnify Company Parties from Indemnifiable Claims arising from your use of Vagaro BNPL.