PRIV MEMBERS – TERMS AND CONDITIONS
These Priv Member Terms and Conditions (this “Agreement”) apply to your use as a Priv Member of: (1) the Priv website at http://www.gopriv.com and all affiliated websites owned and operated solely by Priv (collectively, the “Priv Site”), (2) the appointment booking engine made available by Priv through the Priv Site and the Priv-branded application for smartphone devices (collectively, the “Priv Application”), and any other online properties of Priv (the “Priv BookingEngine”) as described in Part I below, (3) the payment for services made available by Priv Professionals through the Priv Application (the “Priv Payment Services”), as described in Part II below, (4) any other services or features made available to Priv Members through the Priv Site or the Priv Application. Together, the items in(1) through (4) are the “Priv Member Services”.
In this Agreement, “Priv” and “we” mean Priv, LLC, a Delaware limited liability company, and “Priv Member” and “you”mean any person using the Priv Member Services to receive beauty and fitness services from Priv Professionals (“PrivProfessionals”) through the Priv Site and Priv Application.
Priv may update or revise this Agreement from time totime. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Priv Member Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Priv Member Services, in which case you will no longer have access to the Priv Member Services or your Priv Member Account (as defined below). Except as otherwise expressly stated by Priv, any use of the Priv Member Services is subject to the version of this Agreement in effect at the time of use.
By accessing or using the Priv Member Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Priv Member Services.
PARTI – PRIV BOOKING ENGINE
1) Priv provides the Priv Booking Engine to Priv Members for the purpose of assisting Priv Members in securing Priv Professionals to provide beauty and fitness services. In response to a Priv Member’s request to book a Priv Professional through the Priv Site or Priv Application, Priv directly notifies the Priv Professional of the Priv Member’s booking request through the Priv Booking Engine. A Priv Professional may acceptor reject a Priv Member’s booking request in his or her sole discretion. Priv Professionals at no time shall be required to accept a Priv Member’s booking request.
2) Each Priv Professional shall be free in his or her sole discretion to determine at what times and on what dates a Priv Professional shall make himself or herself available on the Priv Booking Engine to accept booking requests from Priv Members.
PART II - PAYMENT TERMS
3) In order to use the Priv Payment Services, you must provide credit card or debit card information for at least one operational and valid credit card or debit card through the Priv Application. You may add, delete, and edit the credit card or debit card information you have provided from time to time through the Priv Application.
4) Upon the Priv Professional’s confirmation to Priv that an appointment with a Priv Member has been completed the Priv Member’s credit card or debit card is immediately charged in full for the service.
5) In the event a Priv Member desires to cancel an appointment, such cancellation will be at no charge to the Priv Member if cancelled within the first five (5) minutes of a confirmed booking. If a Priv Member cancels within five (5) minutes to fifteen (15) minutes of a confirmed booking the Priv Memberwill be charged 50% of the total cost of the services as a cancellation fee. If a Priv Member cancels more than fifteen (15) minutes after a confirmed booking the Priv Member will be charged 100% of the total cost of the services as a cancellation fee.
PART III - GENERAL TERMS
8) You are required to create a Priv Member account with Priv through the Priv Site or Priv Application (“Priv Member Account”) in order to receive services from Priv Professionals. When registering for a Priv Member Account, you must provide true, accurate, current, and complete data about yourself (“Priv Member Registration Data”). You also agree to promptly update the Priv Member Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Priv Member Account and the information in your Priv Member Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Priv Member Account, whether or not authorized by you. You agree to immediately notify Priv of any unauthorized use of your Priv Member Account or any other breach of security related to your use of the Priv Services.
10) Use of the Priv Member Services requires Internet access through your mobile device. You are responsible for all mobile carrier charges resulting from your use of the Priv Member Services, including from any notifications provided by the Priv Services. Priv does not guarantee that the Priv Member Services will be compatible with all devices or will be supported by all mobile carriers.
11) Priv reserves the right, in its sole discretion, to modify the Priv Member Services and the pricing structure for the provision of such services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Priv Site and Priv Application. Priv shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Priv Member Services. Continued use of the Priv Member Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Priv Member Services, including the pricing structure in relation thereto.
12) The features, information, and materials provided and depicted through the Priv Member Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Priv Member Services (collectively, the “Priv Content”) are provided to Priv Members by Priv solely to support the Priv Member’s permitted use of the Priv Member Services. The Priv Content maybe modified from time to time by Priv in its sole discretion. Except asexpressly set forth herein, no license is granted to Priv Members for any other purpose, and any other use of the Priv Members Services or the Priv Content by Priv Members shall constitute a material breach of this Agreement. Priv retains all rights in the Priv Members Services and Priv Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Priv or any third party is granted under this Agreement.
13) Subject to the terms and conditions of this Agreement, Priv grants Priv Members anon-exclusive, non-transferable, revocable license to use the Priv Application, in object code form only, on a Priv Member’s compatible mobile devices, solely to support the Priv Member’s permitted use of the Priv Member Services.
14) The Priv Member Services and Priv Content are offered solely for Priv Member’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Priv expressly reserves all its rights and remedies under applicable state and federal laws. Priv reserves the right, in its sole discretion, to refuse service, terminate Priv Member Accounts, remove or edit content, cancel bookings, or deny access to the Priv Member Services. You agree not to (and not to allow any third party to): (1) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Priv Member Services or copy any Priv Content, except as expressly authorized by Priv; (2) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Priv Member Services; (3) use the Priv Member Services or Priv Content for any illegal purpose; or (4) publicly disseminate information regarding the performance of the Priv Member Services or Priv Content.
15) Priv may suspend your ability to use all or any element of the Priv Member Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Priv may suspend your access to the Priv Member Services if we believe you to be in violation of any part of this Agreement. After any suspension or termination, you may or may not be granted permission to use the Priv Member Services or re-establish a Priv Member Account. You agree that Priv shall not be liableto you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Priv Member Services at any time. You understand that any termination of your Priv Member Account may involve deletion of any content stored in your Priv Member Account for which Priv will have no liability whatsoever.
16) You represent and warrant: (1) the accuracy and truthfulness of all information youprovide to Priv for uploading to the Priv Site and Priv Application orotherwise, and (2) no information you upload to the Priv Site or PrivApplication shall infringe any third-party rights (including, withoutlimitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Priv’s request) defend Priv, and its representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Priv Parties”) from and against all claims, injuries, illnesses, damages and liabilities (“Claims”) resulting from (1) your use of the Priv Member Services, (2) any Claim made by a Priv Professional against the Priv Parties arising out of or relating to the acts or omissions of a Priv Member receiving beauty andfitness services from a Priv Professional, or (3) any breach or alleged breach by you of this Agreement.
17) TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT SHALL THE PRIV PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE PRIV MEMBER SERVICES BY THE PRIV MEMBER (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE PRIV BOOKING ENGINE), OR (4) A PRIV PROFESSIONAL’S ACTS OR OMISSIONS AT A PRIV MEMBER’S RESIDENCE OR OTHER LOCATION WHETHER RELATED TO THE PRIV PROFESSIONAL’S PROVISION OF BEAUTY AND FITNESS SERVICES TO A PRIV MEMBER OR OTHERWISE.
18) PRIV EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED IN RESPECT OF THE PRIV MEMBER SERVICES, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTYAS TO THE INFORMATION PROVIDED ABOUT PRIV PROFESSIONALS AND THE ACTS OROMISSIONS OF PRIV PROFESSIONALS.
19) THE QUALITY OF THE PRIV PROFESSIONAL SERVICES IS ENTIRELY THE RESPONSIBILITY OF THE PRIV PROFESSIONAL WHO PROVIDES SUCH BEAUTY AND FITNESS SERVICES TO YOU. YOUUNDERSTAND, THEREFORE, THAT BY USING THE SERVICES OF A PRIV PROFESSIONAL, YOU MAY BE EXPOSED TO BEAUTY AND FITNESS SERVICES THAT ARE POTENTIALLY DANGEROUS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOUR USE OF THE PRIV MEMBER SERVICES AND BOOKING OF A PRIV PROFESSIONAL IS AT YOUR OWN RISK.
20) YOU ACKNOWLEDGE THAT YOUR RELIANCE ON ANY INFORMATION PROVIDED BY PRIV OR BY ANY PRIV PROFESSIONAL TO YOU IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR ALL RISK ASSOCIATED THEREWITH, AS ALLOWABLE TO THE EXTENT OF THE LAW.
21) ALTHOUGH PRIV PROVIDES INFORMATION ABOUT PRIV PROFESSIONALS, PRIV DOES NOT PROVIDE THE SERVICES RENDERED BY PRIV PROFESSIONALS. PRIV REQUESTS BACKGROUND INFORMATION OF ITS PRIV PROFESSIONALS, BUT PRIV DOES NOT AND CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY SUCH INFORMATION-GATHERING OR THAT A PARTICULAR PRIV PROFESSIONAL IS ADEQUATELY QUALIFIED TO PERFORM ANY GIVEN SERVICE.
22) THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
23) You and Priv understand and agree that the disclaimers, exclusions, and limitations set forth herein are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Priv would be unable to make the Priv Member Services available to you excepton these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
24) If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statuteor rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
25) This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by Priv Members, but may be freely transferred, assigned, or delegated by Priv.
26) Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
27.) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Priv shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American ArbitrationAssociation (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Priv must abide by the following rules:(1) ANY CLAIMS BROUGHT BY YOU OR PRIV MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Priv will pay as much ofyour filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Priv also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content orresults of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Priv may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York City, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York City, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York City, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Priv shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York City, New York.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
28) This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.