SprayValet Terms of Service
Effective Date: October 25, 2019
Last Updated: October 25, 2019
AS FURTHER DESCRIBED BELOW, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
As described in Section 5(g) below, SprayValet will not refund you for any reason if you receive a Spray tan (as defined below), except as determined in its sole discretion. For avoidance of doubt, if you engage in conduct deemed inappropriate or unsafe by a Sprayer, as determined in the Sprayer’s sole discretion, including, but not limited to, making inappropriate requests, engaging in inappropriate touching, or the Sprayer perceives a threat to his/her safety or well-being, and such conduct results in a Sprayer ending the Spray tan prior to the end of the allotted time, SprayValet will not refund you.
- Use of Web Site, Mobile Applications, and our Service
a. The “Service” is SprayValet’s website located at www.sprayvalet.com and mobile applications, as each may be updated, relocated, or otherwise modified from time to time, including through networks, embeddable widgets, downloadable software, and tablet computer applications, and all intellectual property contained therein. The Service provides health and wellness professionals (“Sprayers“) with a network (the “SprayValet Network“) through which Sprayers can provide spray tans (each, a “Spray tan“) to consumers. Any person who accesses and/or uses the Service to book a spray tan on his or her own behalf, or on behalf of any third party, will be referred to herein as a “SprayValet Member“.
b. Subject to the terms and conditions of these Terms, SprayValet hereby grants you a limited revocable, non-exclusive, non-transferable license to access and use the Service, solely in the manner intended by SprayValet. Unless otherwise specified in writing, the Service is solely for your personal use and not for resale. SprayValet reserves the right at all times and without notice to: (i) restrict and/or terminate your access to the Service (or any portion thereof); and (ii) modify or discontinue providing the Service (or any portion thereof).
- Registration, Accounts, Passwords and Security
a. SprayValet Members. In order to become a SprayValet Member, you must complete the registration process by providing SprayValet with current, complete and accurate information, as prompted by the applicable registration form.
b. Sprayers. In order to become a Sprayer, you must enter into the Agreement Between SprayValet and Sprayers for Use of SprayValet Spray tan On Demand Services (the “Sprayer Agreement“) and provide any information required by SprayValet in order to verify your identity and credentials or as otherwise set forth in the Sprayer Agreement.
c. Accuracy of Information. You acknowledge that in the event you provide any information to SprayValet which is untrue, inaccurate, not current or incomplete, SprayValet may terminate these Terms and your continued access and use of the Service.
i. You represent and warrant that you are at least eighteen (18) years of age, that you have not been previously suspended or removed from the Service, and that you possess the legal right and ability to enter into these Terms. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY SPRAY VALET. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. While individuals under the age of 18 may receive a Spray tan booked for them through the Service by a parent or legal guardian (who must also supervise the Spray tan), such individuals may not use the Service themselves.
ii. If you are using the Service on behalf of an individual, company, entity, or organization (each, a “Guest“), you represent and warrant that (A) you are an authorized representative of such Guest with the authority to bind such Guest to these Terms, (B) agree to be bound by these Terms on behalf of such Guest, and (C) your Guest meets the eligibility requirements for the Service, as set forth in these Terms. Further, you will be solely responsible for ensuring your Guest complies with these Terms.
e. Credentials. As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. You agree to notify SprayValet immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at www.sprayvalet.com/contact-us. You are responsible for all use of the Service occurring under your user name. You are responsible for keeping your password confidential and for notifying us if your password has been hacked or stolen. SprayValet will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by SprayValet or another party due to someone else using your account or password.
- Your Responsibilities. You may use the Service solely for lawful and, unless you are a Sprayer or Concierge Member (defined in Section 5.h below), non-commercial purposes, as intended through the provided functionality of the Service. You may not use the Service in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you expressly agree that you will not (and you agree not to allow or assist any third party to):
a. use, copy, install, transfer or distribute the Service, except as specifically permitted by these Terms;
b. modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service or its Content (as defined below);
c. remove or alter any copyright, trademark or other proprietary rights notices contained in or on the Service or in or on any content or other material obtained through the Service or the use of the Service;
d. create user accounts by automated means or under false or fraudulent pretenses;
e. use any robot, spider, screen or database scraper, site search or retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Service;
f. probe, scan or test the vulnerability of any system or network or breach any security or authentication measures;
g. reformat, mirror, or frame any portion of the web pages that are part of the Service;
h. express or imply that any statements you make are endorsed by us, without our prior written consent in each instance;
i. transmit (i) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party’s intellectual property or other rights, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
j. transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component; use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
k. harvest or collect information about other users without their prior written consent;
l. undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including Content, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the Service’s authorized features, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by SprayValet;
m. access, tamper with, or use non-public areas of the Service, SprayValet’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of SprayValet’s providers;
n. harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including SprayValet employees and other users;
o. create a new account with SprayValet, without SprayValet’s express written consent, if SprayValet previously disabled an account of yours;
p. solicit, or attempt to solicit, personal information from other users, except as permitted through the Service’s functionality;
q. restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users;
r. gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
s. violate any applicable federal, state or local laws, regulations or these Terms;
t. use the Service for any illegal, inappropriate and/or unauthorized conduct, including without limitation, using the Service to contact Sprayers for sexual or other inappropriate purposes, or using the Service in violation of SprayValet’s or any third party’s intellectual property or other proprietary or legal rights; or
u. use or access the Service to build a competing service.
We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.
- Medical-Related Disclaimers
a. THE CONTENT AND INFORMATION MADE AVAILABLE THROUGH SERVICE, INCLUDING MATERIALS, (COLLECTIVELY, THE “CONTENT“) ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. NONE OF THE CONTENT MADE AVAILABLE THROUGH THE SERVICE SHOULD BE CONSTRUED AS PROFESSIONAL MEDICAL ADVICE OR CONSULTATION. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. BY USING THE SERVICE, YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICE AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE AND THAT YOU WILL ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING MEDICAL MATTERS. IN NO EVENT WILL A MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP BE CREATED BY USING THE SERVICE.
b. SPRAY VALET DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF ANY INFORMATION PROVIDED BY SPRAY VALET OR OTHER VISITORS TO THE SERVICE IS SOLELY AT YOUR OWN RISK. THE SERVICE MAY CONTAIN HEALTH- OR MEDICAL-RELATED MATERIALS THAT SOME MAY CONSIDER SEXUALLY EXPLICIT. IF YOU FIND THESE MATERIALS OFFENSIVE, YOU MAY NOT WANT TO USE THE SERVICE.
c. THE SERVICE IS CONTINUALLY UPDATED AND SPRAY VALET MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY OR COMPLETENESS. SPRAY VALET MAKES NO WARRANTY THAT THE INFORMATION AVAILABLE ON THE SERVICE INCLUDES THE MOST RECENT FINDINGS.
d. YOU ACKNOWLEDGE THAT YOUR RELIANCE ON ANY INFORMATION PROVIDED BY THE SERVICE OR BY ANY SPRAYER 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. THE SERVICE ARE NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE AN EMERGENCY, CALL 911 IMMEDIATELY.
e. ALTHOUGH SPRAY VALET PROVIDES INFORMATION ABOUT VARIOUS SPRAYERS ON THE SERVICE, SPRAY VALET DOES NOT RECOMMEND ANY OF THE SPRAYERS AND DOES NOT PROVIDE THE SERVICES RENDERED BY SUCH SPRAYERS. SPRAY VALET REQUESTS COPIES OF SPRAYERS’ LICENSES AND OTHER BACKGROUND INFORMATION, BUT SPRAY VALET DOES NOT AND CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY SUCH INFORMATION-GATHERING OR THAT A PARTICULAR SPRAYER IS QUALIFIED TO PERFORM ANY GIVEN SERVICE; AND IT IS SOLELY THE RESPONSIBILITY OF EACH SPRAY VALET MEMBER, AND NOT SPRAY VALET, TO DETERMINE WHETHER A GIVEN SPRAYER IS QUALIFIED AND CAPABLE OF RENDERING SERVICES. FURTHER, SPRAY VALET DOES NOT AND CANNOT GUARANTEE THAT ITS IDENTITY VERIFICATION PROCESSES (WHETHER OF SPRAY VALET MEMBERS OR SPRAYERS) ARE ACCURATE AND, TO THE FULLEST EXTENT PERMITTED BY LAW, SPRAY VALET DISCLAIMS ANY LIABILITY ARISING OUT OF A SPRAY VALET’S FAILURE TO ACCURATELY VERIFY THE IDENTITY OF A SPRAY VALET MEMBER OR SPRAYER. YOU SHOULD EXERCISE COMMON SENSE AND CAUTION TO PROTECT YOUR AND OTHERS’ PERSONAL PROPERTY AND PERSONAL SAFETY. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO TAKE REASONABLE PRECAUTIONS IN ALL ACTIONS AND INTERACTIONS WITH ANY THIRD PARTY YOU INTERACT WITH IN OR THROUGH THE SERVICE.
- Booking Spray Tans. As a condition of being permitted to make appointments with Sprayers through the Service, SprayValet Members agree with the following terms for all appointments booked on the Service.
a. Spray Tans Booked Through the Service. SprayValet Members understand that Sprayers are highly trained and specialize in spray tan techniques. SprayValet does not tolerate any requests deemed sexual or inappropriate in nature. Users reported for inappropriate behavior will be immediately removed from the Service. A SprayValet Member who uses the Service to book a spray tan on his or her own behalf should consult a physician if uncertain as to whether a spray tan is appropriate for such SprayValet Member, and A SprayValet Member who uses the Service to book a spray tan on behalf of a third party should encourage that third party to do the same.
b. Prices. The fees listed on the Service are the standard fees for the listed service, which SprayValet may change at any time in its sole discretion by so posting on the Service. In addition, fees for services provided by a Sprayer may vary depending on a variety of factors such as length, day, time, or location of appointment. The fee you are ultimately charged is the “Fee.”
c. No Liability. To the fullest extent permitted by law, SprayValet will not have any liability whatsoever for any of the services provided by Sprayers. Sprayers bear sole liability for all of the services provided, including those services that are booked through the Service.
d. Exclusive Booking through SprayValet. In order to receive pre-negotiated rates with Sprayers, SprayValet Members agree that once a SprayValet Member has made an appointment with a Sprayer through the SprayValet Network, all subsequent appointments with the Sprayer will be made through SprayValet, for as long as: (i) the Sprayer is an active participant in the SprayValet Network, and (ii) the SprayValet Member continues to keep its account with SprayValet active and in good standing.
e. Responsibility for Payment. You will be charged the Fee following your receipt of a Spray tan. You agree to pay to SprayValet all Fees, whether or not you dispute the amount of the charge or the quality or nature of the services provided. You acknowledge that Spray tans obtained through the Service in all likelihood will not be covered services under your benefit plan, the Medicare program, a state Medicaid program, or any health insurance plan whether government-sponsored or private. You acknowledge and agree that SprayValet will not file any claims with your insurance benefit plan, the Medicare program, a state Medicaid program, or any other third party medical benefits program, and that the services you receive from or through SprayValet may not be eligible for reimbursement under such plans. You acknowledge, understand and agree that when using the Service, you may be responsible for standard phone, data and messaging charges from your wireless carrier. Under no circumstances will SprayValet be responsible for any wireless email, data, phone, or text messaging charges incurred by you or by a person that has access to your wireless device, telephone number, or email address.
f. Cancellations. If you cancel before your scheduled spray tan, then SprayValet may charge you a cancellation fee, which will be set forth in the Cancellation Policy.
g. Dispute Resolution. Although SprayValet retains the right to mediate any dispute between you and a Sprayer, all disputes between you and such Sprayer must ultimately be resolved between you and the Sprayer directly. All sales booked through the Service are final and SprayValet provides no refunds, except as determined in SprayValet’s sole discretion. For avoidance of doubt, SprayValet will not refund you for any reason if you receive a Spray tan, except as determined in its sole discretion. If you engage in conduct deemed inappropriate or unsafe by a Sprayer, as determined in the Sprayer’s sole discretion, including, but not limited to, making inappropriate requests, engaging in inappropriate touching, or the Sprayer perceives a threat to his/her safety or well-being, and such conduct results in a Sprayer ending the Spray tan prior to the end of the allotted time, SprayValet will not refund you.
h. Concierge Bookings. If a SprayValet Member is a concierge that books spray tans on behalf of third parties, including Guests (“Concierge Member“), then this paragraph applies to such Concierge Member’s use of the Service in addition to all other terms and conditions in these Terms.
i. No Conflicts. By accessing and/or using the Service as a Concierge Member, you hereby represent, warrant and covenant to us that such access and/or use of the Service does not and will not violate any contract or agreement between you and any third party, including, without limitation, your employer.
ii. Concierge Tip. Concierge Members will receive a tip for any spray tans booked through the Service in an amount set forth on the Service, which amount SprayValet may change from time-to-time in its sole discretion (“Concierge Tip“). The Concierge Member must provide to SprayValet any information and/or documentation that SprayValet needs to pay the Concierge Tip to the Concierge Member (including, without information, a W-9 form and any other tax-related information). SprayValet will pay the Concierge Tip to the Concierge Member on a weekly basis through the Automated Clearing House. With respect to each spray tan the Concierge Member books through the Service, the Concierge Member must include all information required by the Service and any other relevant information that would be necessary and/or helpful to enable the Sprayer to provide the spray tan, which includes, without limitation, the spray tan recipient’s name and address, and any parking instructions.
- Referral Program. You may be able to earn free spray tans by inviting friends to book through SprayValet using the promo code assigned to you by SprayValet (“Code“). Codes are for personal and non-commercial use only and may not be duplicated, sold or transferred in any manner. This means that you are welcome to share your Code with friends, family and your social network, so long as you are the primary content owner of such network. Both you and each friend or family member that signs up with your Code and places an order will receive the credit set forth on the Service (“Credit“); provided that you may not accrue more than $500 in Credit at any given time. The expiration date for Credits will be stated on the Service. Codes are not intended for distribution on public sites, such as Yelp or Facebook, coupon code websites, such as retailmenot, via search engines. We reserve the right to disable your Code in our sole discretion. Codes (a) may only be used pursuant to the specific terms that SprayValet establishes for such Code; (b) are not valid for cash; and (c) may expire prior to your use. SprayValet reserves the right to withhold or deduct Credits or other features or benefits obtained through the use of Codes by you or any other user in the event that SprayValet determines or believes that the use or redemption of the Code was in error, fraudulent, illegal, or in violation of the applicable Code terms or these Terms.
- Providing Spray tans. The terms governing Sprayers with respect to providing Spray tans are set forth in the Sprayer Agreement.
- Consent to Electronic Communications
b. SMS Text Messages and Push Notifications. When you register with SprayValet, SprayValet will send you an SMS text message containing a 4-digit code in order to verify your phone number and will send SMS text messages and push notifications (“Messages and Notifications“) in order to keep you informed about the Service. For example, SprayValet will send you a text message to confirm or remind you of your Spray tan appointment. By using the Service, you agree to receive Messages and Notifications regarding your use of the Service. SMS text messages are for informational purposes only. While Messages and Notifications are intended to enhance your use of the Service, you may (i) disable push notifications on your device, and/or (ii) text “STOP” to GO-SPRAY VALET or 877-GET-SPRAY VALET to remove yourself from our text message database.
c. If you wish to remove yourself from any list (other than as set forth in Section 7.b), please email us with an “OPT-OUT”, “UNSUBSCRIBE”, “STOP” or “REMOVE” in the subject line.
d. Depending on your current carrier plan, you may incur charges for these Messages and Notifications and agree to not hold SprayValet liable for any charges incurred. You acknowledge that any terms between you and any third-party provider (such as, for example, Apple®, Android™, or Verizon) create no obligation or responsibility on the part of SprayValet, and that SprayValet is not responsible for any failure of warranty by any such third party.
e. SprayValet cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.
- Content Submitted to SprayValet
a. By sending or transmitting to us information, opinions, creative suggestions, ideas, notes, concepts, or other materials (collectively, “Materials“), or by posting such Materials to any area of the Service, you grant SprayValet and its designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Materials in any media now known or hereafter developed to enhance and develop the Service, including by marketing and advertising the Service, without compensation to you; provided that we will never use your name in connection with any of your Materials that we use in our own advertising and marketing materials without obtaining your prior consent; provided further, that if you are a Sprayer, the use of certain Materials (for example, your biography, photo, and other information to associate with your profile on the Service) will be as set forth in the Sprayer Agreement. None of the Materials will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any Materials. SprayValet may remove or alter any Materials at any time for any reason. We neither endorse nor are responsible for any opinion, advice, information, or statement made or displayed on the Service by any user. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. Under no circumstances will SprayValet and/or its affiliates, suppliers, or agents be liable for any loss or damage caused by your reliance on such information obtained through the Service. We cannot and do not take responsibility for the veracity, reliability, or completeness of any opinion, advice, information, or statement available on the Service.
b. The opinions expressed on the Service by users reflect solely the opinions of the users who post thereon and do not reflect the opinions of SprayValet. You acknowledge and agree that we have the right (but not the obligation) to monitor the Service and Materials; to alter or remove any Materials; and to disclose Materials and the circumstances surrounding their transmission to any third party in order to operate the Service properly; to protect ourselves, our sponsors, and our members and visitors; and to comply with legal obligations or governmental requests. If you believe a message violates our member policies, please contact SprayValet immediately at www.sprayvalet.com/ so that we can consider its editing or removal.
c. You are solely responsible for your Materials and the consequences of posting them on the Service. By posting Materials, you represent, warrant, and covenant that: (i) you are the creator and owner of the Materials or otherwise have sufficient rights and authority to grant the rights granted herein; (ii) your Materials do not and will not (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (B) slander, defame, or libel any other person; (iii) your Materials do not contain any viruses, adware, spyware, worms, or other harmful or malicious code or (iv) unless you have received prior written authorization, your Materials specifically do not contain any confidential information of any third party. We reserve all rights and remedies against any users who breach these representations and warranties.
d. Sending Messages. The Service may allow Sprayers and SprayValet Members to exchange messages (“Messages“) with each other. Sending Messages is a privilege, not a right, and SprayValet may terminate such privileges of any user at any time and for any reason, without any liability to such user. Harmful, obscene, or offensive communications are not welcome in any Messages. If a user sends you an objectionable Message, please notify us by sending an e-mail to firstname.lastname@example.org. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree that SprayValet may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transfer to the intended recipient through the Service and for such other purpose as SprayValet may deem appropriate in its sole discretion.
- Contests. SprayValet may provide contests on the Service. The rules, regulations, and procedures governing such contests (“Contest Rules“) will be accessible through a hypertext link displayed on the web page where the contest or game may be located. By entering or participating in any of our contests or games, you agree to be subject to those rules, regulations and procedures as well as the terms and conditions of these Terms. In the event of a conflict between any Contest Rules and these Terms, the applicable Contest Rules will govern.
- Term and Termination
b. Effect of Termination. The following Sections of these Terms will survive termination or expiration of the Agreement: 1.c, 2.d, 3, 4, 5.e, 8.a, 9, 11.b, 12, 13, 14, 15, 16, 17, 18, 20 – 28. Payments by you, which accrue or are due before termination of your membership, will continue to be payable by you, and amounts owed to SprayValet at the time of such termination or expiration will continue to be owed by you, after such expiration or termination.
a. Proprietary Information. You acknowledge and agree that: (i) the Service, including, without limitation, any Content, modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information“), is owned by SprayValet and its licensors, as applicable; (ii) the Proprietary Information contains valuable copyrighted and proprietary material of SprayValet; (iii) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (iv) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms.
b. Trademarks. You acknowledge that SprayValet has acquired, and is the owner of, trademark rights in the name and word mark “SprayValet”™ and in the other marks and design marks displayed on the Service. You acknowledge that this name and these marks are famous and internationally known. You will not, at any time or for any reason, challenge the validity of, or SprayValet’s ownership of, the foregoing name and marks, and you waive any rights you may have at any time to do so. All use of the foregoing name and marks by you will inure exclusively to the benefit of SprayValet. All marks shown on the Service but not owned by SprayValet are the property of their respective owners.
- Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by SprayValet infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
a. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
c. identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow SprayValet to locate the material on the Service;
d. the name, address, telephone number, and email address (if available) of the complaining party;
e. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f. a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send SprayValet a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.copyright.gov for details. Notices and counter-notices with respect to the Service should be sent to email@example.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
- Disclaimer of Warranty
a. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET, MOBILE NETWORKS, AND THE DEVICES WHICH ACCESS THE INTERNET AND/OR MOBILE NETWORKS, THE SERVICE MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION, DATA, AUDIO AND VIDEO TRANSMITTED OVER THE INTERNET AND/OR MOBILE NETWORKS MAY BE SUBJECT TO INTERRUPTION OR THIRD PARTY INTERCEPTION AND MODIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, SPRAY VALET DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF SPRAY VALET, ITS AFFILIATES OR SERVICE PROVIDERS, SPRAY VALET’S CONTENT PROVIDERS AND/OR THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES NOR THE EMPLOYEES, AGENTS AND/OR CONTRACTORS (COLLECTIVELY, THE “SPRAY VALET PARTIES“) WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICE. SPRAY VALET CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY OF CONTENT AND INFORMATION ACCESSED THROUGH THE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF THE RESPECTIVE CONTENT IS AT YOUR SOLE RISK.
b. You acknowledge that any information you obtain from Sprayers comes from those individuals, and not from SprayValet, and that SprayValet, to the fullest extent permitted by law, is not in any way responsible for any of the information these third parties may supply or for any statements, claims, or representations they may make. To the fullest extent permitted by law, SprayValet disclaims any such statements, claims, or representations and the same do not expand or otherwise modify the terms of these Terms. If you are dissatisfied with the Service, your sole and exclusive remedy is to discontinue accessing and using the Service.
- Limitation of Liability
a. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH USER IS SOLELY RESPONSIBLE FOR (I) HIS OR HER USE OF THE SERVICE, AND (II) ANY DAMAGES INCURRED BY HIM OR HER OR ANY THIRD PARTY THAT ARISE FROM OR ARE RELATED TO THE SERVICE. THE AGGREGATE LIABILITY OF THE SPRAY VALET PARTIES FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO ACTUAL DAMAGES PROVED, AND NOT TO EXCEED THE AMOUNT PAID BY YOU TO SPRAY VALET FOR THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, NONE OF THE SPRAY VALET PARTIES WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SPRAY VALET OR ITS CONTENT PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THE SPRAY VALET PARTIES WILL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES; COSTS OR DAMAGES OF ANY KIND INCURRED OR SUFFERED BY YOU AS A RESULT OF SERVICES PROVIDED BY ANY OF THE SPRAYERS ACCESSED THROUGH THE SERVICE.
c. YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE SPRAY TAN SERVICES MADE AVAILABLE TO YOU BY SPRAY VALET AND THE POSSIBLE RISKS INVOLVED IN USING SUCH SERVICES. YOU AGREE TO MAINTAIN YOUR OWN INSURANCE COVERING SUCH RISKS AND WILL LOOK SOLELY TO SUCH INSURANCE FOR REIMBURSEMENT OF ANY RESULTING DAMAGES.
- Third Party Disputes. SPRAY VALET IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE OR YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE SPRAY VALET (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Force Majeure. SprayValet will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond SprayValet’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic or governmental action, in so far as such an event prevents or delays SprayValet in fulfilling its obligations hereunder.
- Indemnification and Release
a. To the fullest extent permitted by law, You will defend, indemnify and hold SprayValet, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents, harmless against any loss or damage of any kind (including, without limitation, attorneys’ fees and lost revenues) arising from: (i) any and all breaches by you of these Terms or any representation, warranty or covenant contained herein; (ii) any and all use of the Service not specifically authorized hereunder and on the Service; and (iii) any and all claims and actions against SprayValet by other parties to whom you allow access to the Service.
b. To the fullest extent permitted by law, You further waive, release and forever discharge the SprayValet Parties from any and all responsibility or liability for injuries or damages resulting from your Spray tans or any other service obtained through the use of the Service, including injuries or damages caused by the negligent act or omission of the Released Parties or in any way arising out of or connected with the Service.
c. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not, in any event, settle any claim or matter without our written consent.
- Additional Service Features. The Service may contain information on products, and services provided by third parties, including Sprayers, and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to users. SprayValet does not review or control this information or these products, services, or other web sites, and SprayValet does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with SprayValet with respect to any third party or its web site or content, or any information, products, or services provided by that third party. SprayValet is under no obligation to maintain any link on the Service and may remove a link at any time in its sole discretion for any reason whatsoever.
- Dispute Resolution
a. Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND SPRAY VALET AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Please visit www.adr.org for more information about arbitration.
i. Commencing Arbitration. A party seeking arbitration must first send to the other by mail or electronic mail, a written notice of intent to arbitrate (a “Notice“), or, in the absence of a mailing address provided by you to SprayValet, to you via any other method available to SprayValet, including via e-mail. The Notice to SprayValet should be addressed to firstname.lastname@example.org (the “Address“). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand“). If the claim is not resolved within 30 days after the Notice is received, then you or SprayValet may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA“) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules“), AS MODIFIED BY THESE TERMS. The Rules and AAA forms are available at www.adr.org. If you are required to pay a filing fee to commence arbitration against SprayValet, then SprayValet will promptly reimburse you for your confirmed payment of the filing fee upon SprayValet’s receipt of Notice at the Address that you have commenced arbitration along with a receipt for the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith.
ii. Arbitration Proceeding. The arbitration will be in English. A single independent and impartial arbitrator with his or her primary place of business in Los Angeles County, California, will be appointed pursuant to the Rules, as modified herein. You and SprayValet agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iii. No Class Actions. YOU AND SPRAY VALET AGREE THAT YOU AND SPRAY VALET MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THIS ENTIRE MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this deadline by 30 days in the interests of justice. Arbitration proceedings will be closed to the public and confidential, and all related records will be permanently sealed, except as necessary to obtain court confirmation of the award. The award will be in writing and will include a statement setting forth the reasons for the claim’s disposition. The arbitrator will apply California state law during the arbitration. You agree that these terms and your use of the App evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in These Terms. If the dispute is finally resolved through arbitration in your favor, SprayValet will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by SprayValet in settlement of the dispute prior to the arbitrator’s award; or (C) $1,000.
b. Equitable Relief. The foregoing provisions of this Section 20 do not apply to any claim in which SprayValet seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by SprayValet or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against SprayValet, and your only remedy will be for monetary damages, subject to the limitations of liability set forth above.
c. Claims. You and SprayValet agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against SprayValet must be resolved in accordance with this Section 20. All claims filed or brought contrary to this Section 20 will be considered improperly filed. Should you file a claim contrary to this Section 20, SprayValet may recover attorneys’ fees and costs up to $5,000, provided that SprayValet has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. If SprayValet changes the Mandatory Arbitration provision (other than a change to SprayValet’s Address), then you may reject any such change by sending us written notice to SprayValet’s Address within 30 days of the change, in which case your Account and your right to use the Service will terminate immediately, and this Section 20, as in effect immediately prior to the amendments you reject, will survive termination of these Terms.
f. Enforceability. If only Section 20.a.iii or the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 21 will govern any action arising out of or related to these Terms.
- Governing Law; Choice of Forum. The laws of the State of California, excluding its conflicts of law rules, govern these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
- Feedback. While our staff continually works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from our Users. If you send us or our employees any ideas or suggestions for products, services, features, modifications, enhancements, content, promotions, strategies, or product/feature names, or any related materials (collectively “Feedback“), then regardless of what your communication may say, the following terms apply, to avoid future misunderstandings. By sending us Feedback, you agree that:
a. SprayValet will own, exclusively, all known or later discovered rights to the Feedback;
b. SprayValet will not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Feedback; and
c. SprayValet will be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
- Entire Agreement; Variation. These Terms and any license contained in SprayValet’s products set forth the entire agreement between SprayValet and you with respect to the Service; provided, however, that: (1) Sprayers will also be required to enter into the Sprayer Agreement; (2) SprayValet may enter into additional agreements with you (such as, for example, the Spray tan SprayValetot Membership Program Agreement). In the event of a conflict between these Terms and the Sprayer Agreement, the terms of the Sprayer Agreement will govern. In the event of a conflict between these Terms and the Spray tan SprayValetot Membership Program Agreement, the Spray tan SprayValetot Membership Program Agreement will govern.
- Severability. If any provision of these Terms is held invalid, illegal or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of these Terms will not be affected thereby.
- Relationship of Parties. Nothing herein will be deemed to create an employer-employee relationship between SprayValet and you, nor any agency, joint venture or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
- Waiver. No delay, omission, or failure to exercise any right or remedy provided herein will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
- Assignment. Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of SprayValet and any attempt to do so will be null and void. However, SprayValet may assign or transfer these Terms at any time without your permission.
- Third-Party Beneficiaries. The provisions of these Terms relating to the rights of SprayValet content providers are intended for the benefit of such content providers, and such content providers, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with their terms, irrespective of the fact that they are not signatories to these Terms.
NOTICE REGARDING APPLE. You acknowledge that these Terms are between you and SprayValet only, not with Apple, and Apple is not responsible for the Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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. If SprayValet provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.