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Schedulicity Service Provider Subscription Agreement

Last Updated Date: October 18, 2021

PLEASE REVIEW THE FOLLOWING SERVICE PROVIDER SUBSCRIPTION AGREEMENT (“AGREEMENT”) WITH SCHEDULICITY, INC. (“SCHEDULICITY,” “we,” or “our”) CAREFULLY BEFORE INDICATING YOUR AGREEMENT TO BE BOUND BY IT. THIS AGREEMENT GOVERNS YOUR USE OF THE WEBSITE OWNED OR CONTROLLED BY SCHEDULICITY, INCLUDING SCHEDULICITY.COM (collectively, the “Website”), OUR MOBILE APPLICATION(S) (the “App”) AND SERVICES PROVIDED BY OR ENABLED VIA THE WEBSITE AND APP (collectively, the Website, App and such services, the “Services”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, EXECUTING AN ORDER FORM THAT INCORPORATES BY REFERENCE THIS AGREEMENT AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SCHEDULICITY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTER TO USE THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

IF YOU SUBSCRIBE TO THE SERVICES FOR A SPECIFIC TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM (EACH A “RENEWAL TERM”, AND TOGETHER THE INITIAL TERM AND THE RENEWAL TERM(S), THE “TERM”) AT SCHEDULICITY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 10 BELOW OR THIS AGREEMENT IS EARLIER TERMINATED IN ACCORDANCE WITH ITS TERMS.  IF YOU DO NOT SUBSCRIBE FOR A SPECIFIC TERM, THEN THE “TERM” SHALL MEAN THE PERIOD COMMENCING ON THE EARLIER OF THE DATE YOU ACCEPT THESE TERMS OR START USING THE SERVICES THROUGH THE DATE UPON WHICH THIS AGREEMENT IS TERMINATED.

PLEASE BE AWARE THAT SECTION 24 OF THIS AGREEMENT, BELOW, CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST SCHEDULICITY TO BINDING AND FINAL ARBITRATION.  UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST SCHEDULICITY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.

PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY SCHEDULICITY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, SCHEDULICITY will make a new copy of the Agreement available at the Website and within the App, and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website and within the App.  We will also update the “Last Updated” date at the top of the Agreement. SCHEDULICITY may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, App and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, App and/or the Services. Otherwise, your continued use of the Website, App and/or Services constitutes your acceptance of such change(s); provided that if you pay for a subscription to the Services, the updated Agreement will not be effective until the renewal of the then-current term. PLEASE REGULARLY CHECK THE WEBSITE AND APP TO VIEW THE THEN-CURRENT AGREEMENT.

1. Provision of Services

Schedulicity grants to you a non-exclusive, non-transferable, non-sublicensable, revocable right to use the Services solely for your internal business purposes subject to your compliance with the terms and conditions provided in this Agreement. Nothing in this Agreement or its performance will grant you any right, title, interest, or license in or to Schedulicity’s names, logos, trade dress, designs, or other trademarks. Schedulicity is a registered trademark of Schedulicity.

Other trademarks used in this Agreement or displayed in connection with the Services are trademarks of their respective owners.

2. Restrictions on Your Use of the Service

The Services may only be used for lawful purposes. In using the Services, you agree that you will not:

  • engage in unlawful activity of any kind, advertise any illegal service or offer to sell items that are restricted or prohibited by applicable law;
  • submit, post, make available, transmit or display (collectively, “Make Available”) any text, audio, video, pictures, graphics, sound clips, content, materials or other works of authorship (“Service Provider Content”) that is offensive, including blatant expressions of bigotry, prejudice, racism, hatred or profanity or post any obscene, lewd, lascivious, filthy, sexually explicit, violent, harassing or otherwise objectionable content;
  • Make Available any personally identifying information or private information about children under the age of 18 without their parents’ consent or about any other person without that person’s authorization;
  • introduce viruses, worms, harmful code and/or Trojan horses on the Internet;
  • stalk, assault or otherwise harass any end user of the Service;
  • harm minors in any way;
  • impersonate any person or entity, including but not limited to, Schedulicity personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • engage in any libelous, defamatory, scandalous, threatening, or harassing activity;
  • Make Available any Content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence;
  • Make Available Content that is false, fraudulent, inaccurate, deceptive or misleading;
  • Make Available Content without the express written consent of the Content owner;
  • Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Website and/or App;
  • Modify, translate or create derivative works based on any of the Website and/or App
  • Copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Website and/or App;
  • Use any of the Website and/or App for timesharing or service bureau purposes or otherwise for the benefit of a third party;
  • Hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Website and/or App or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or
  • Remove or obscure any proprietary notices or labels of Schedulicity or its suppliers or vendors on any of the Website and/or App.

You may not access the Services if you are a direct competitor of Schedulicity, except with Schedulicity’s prior written consent.

You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You may not interfere with or disrupt the integrity or performance of the Services or the data contained therein or attempt to gain unauthorized access to the Services or its related systems or networks.

3. Agreements and Policies Offered by You

SCHEDULICITY may allow you to post terms of use, agreements, and privacy policies (“Service Provider Agreements”) through the Services that are separate from those of SCHEDULICITY. YOU AGREE THAT SERVICE PROVIDER AGREEMENTS ARE STRICTLY BETWEEN YOU AND THE WEBSITE USERS. SCHEDULICITY IS NOT A PARTY TO SERVICE PROVIDER AGREEMENTS. YOU FURTHER AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SCHEDULICITY AND ITS AFFILIATES, SUCCESSORS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS (THE “SCHEDULICITY PARTIES”) FROM ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, COSTS, EXPENSES OR LOSSES (COLLECTIVELY “LOSSES”) INCURRED BY THE SCHEDULICITY PARTIES ARISING FROM ANY CLAIM, DEMAND OR ALLEGATION ARISING OUT OF OR RELATED TO (A) THE SERVICE PROVIDER AGREEMENTS, (B) YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH IN THIS SECTION 3.

4. Ownership Rights to the Services

You acknowledge and agree that, as between the parties, Schedulicity retains all rights, title and interest in and to the Services, any content set forth on the Services (other than the Service Provider Content), any data collected from end user customers, or provided by such customers, through the Services (“Customer Data”) and any other materials provided by Schedulicity to you, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. Schedulicity hereby reserves any and all, and you will acquire no rights, title or interest in and to the Services, Customer Data and any other materials provided by Schedulicity to you, or any copies thereof other than the limited license rights expressly granted under this Agreement.

5. Ownership Rights to Your Data and Your Content; License Grant to Your Content

You hereby represent and warrant that you own, or otherwise have the rights necessary to use as contemplated herein, any data collected from you or otherwise provided by or on your behalf to Schedulicity  (“Your Data”).  For clarity, Your Data does not include any data provided by or on behalf of customers using the Services, which customer data, as between the parties, is owned by Schedulicity. You hereby grant to Schedulicity a worldwide, royalty-free, freely transferable, non-exclusive, sublicensable right and license to copy, distribute, display, modify, create derivative works of and use Your Data to perform Schedulicity’s obligations under this Agreement, including providing access to the Services, creating posts about your Offerings and making your Offerings available for reservation by customers through the Services.

You also hereby grant to Schedulicity a non-exclusive, world-wide, royalty-free, fully paid up, perpetual and irrevocable license to copy, anonymize, process and create derivative works of Your Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and data related to the Services, provided such data cannot be used to identify you (“Anonymous Data”) and combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or other sources (when so combined or incorporated, referred to as “Aggregate Data”), for improving Schedulicity’s existing products and services and creating derivatives thereof, developing new products and services and for marketing purposes (e.g., indicating the number of customers using certain services of Schedulicity). For clarity, Anonymous Data is not Your Data.

You acknowledge and agree that you have sole responsibility and liability for the accuracy, quality, and legality of Your Data and the means by which such information and data was acquired

Whenever you Make Available any Service Provider Content on our Website or App, you represent and warrant that:

  • You solely own or otherwise have all rights, and have obtained all consents, necessary to Make Available the Service Provider Content (including any Service Provider Content featuring an individual’s likeness) to us, without the payment of any additional fees or royalties, and that Schedulicity’s use of such Service Provider Content will not infringe upon any third party’s proprietary rights, including intellectual property rights, rights of publicity and rights of privacy;
  • The Service Provider Content is not defamatory or libelous in nature, and does not infringe the intellectual property, privacy, publicity or any other legal or moral rights of any third party; and
  • You assume all risk associated with the Service Provider Content and the transmission of the Service Provider Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of the Service Provider Content.

You are solely responsible for resolving disputes regarding ownership or access to the Service Provider Content, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that Schedulicity has no obligation whatsoever to resolve or intervene in such disputes.

You retain ownership of all intellectual property and proprietary rights to any Content that you Make Available on the Website and App. However, by submitting, sending or otherwise making your Content available on or through the Website, you hereby grant us a worldwide, royalty-free, freely transferable, non-exclusive, sublicensable right and license to reproduce, copy, distribute, publicly display, modify, create derivative works of and use the Service Provider Content in any form, media, or technology now known or later developed, in connection with our performance of the Services.

You acknowledge and agree that Schedulicity may preserve Service Provider Content and may also disclose Service Provider Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Schedulicity, its users, or the public. You understand that the technical processing and transmission of the Service, including your Service Provider Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

You hereby grant to Schedulicity a worldwide, royalty-free, freely transferable, non-exclusive, sublicensable right and license to copy, distribute, display, create derivative works of and otherwise use any logo, and any other trademark or service that you make available to Schedulicity (“Your Marks”) during the Term for purposes of making your service offerings (the “Offerings”) available on the Website and/or App, marketing, advertising, promoting, selling and otherwise commercializing the Offerings made available through the Site and/or App, and the Services itself, and/or for other purposes deemed appropriate by Schedulicity in its reasonable discretion, except to the extent expressly prohibited by law; provided that any specific usage and display of the Your Marks during the Term in connection with content posted, published, displayed or distributed on websites, mobile websites, social media outlets or channels or other publications during the Term may continue to be displayed, distributed and otherwise used on such websites, mobile websites or social media outlets or channels after the Term (i.e., Schedulicity is not required to “take down” any such content solely due to the termination of this Agreement, but will take down the content upon Professional’s reasonable request).  All use of Your Marks will conform to any reasonable guidelines you may provide to Schedulicity regarding usage and appearance. Schedulicity agrees that any prior or continued use of Your Marks has inured and continues to inure to your sole and exclusive benefit, and Schedulicity agrees that it will not represent that it has any ownership in, or attempt to sublicense, any of Your Marks. 

6. Feedback

You may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Schedulicity with respect to the Services and other related services.  You hereby grant Schedulicity a royalty-free, fully paid-up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback in whole or in part.

7. Your Account

This Agreement shall commence as of the date you accept it (in accordance with the preamble) and will remain effective until terminated by you or SCHEDULICITY in accordance with the terms herein.

In order to access certain features of the Website, App and/or Services you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Website or App (“Account”). In registering an Account, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that as an individual you are (1) of legal age to form a binding contract or are authorized on behalf of an entity to enter into a binding contract; and (2) not a person or entity barred from using website or Services under the laws of the United States, your place of residence/business (as applicable) or any other applicable jurisdiction.  If you enter into this Agreement on behalf of an entity you represent that you are duly authorized to enter into this Agreement binding such entity in accordance with the preamble. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify SCHEDULICITY immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or SCHEDULICITY has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SCHEDULICITY has the right to suspend or terminate your Account and refuse any and all current or future use of the Website, App or Service (or any portion thereof).

Your listing at Schedulicity.com, access to the Services, and access to your business data will terminate immediately when you cancel your subscription or this Agreement is otherwise terminated as set forth herein.

8. Your Offerings

Through the Services you may make available for reservation your Offerings.  Once a customer has reserved an Offering, the Services will automatically confirm the reservation.  Thereafter, you will be primarily and solely responsible for all matters related to the reserved Offering and the relationship with the customer.  In connection therewith, you shall perform the services required to provide the Offering in a professional and workmanlike manner.

Through the Services, you agree to provide true, accurate, current and complete information regarding your Offerings that are posted on the Services as well as in any subsequent correspondence with customers via the Services and otherwise.

You acknowledge and agree that the Services is merely a marketplace to connect potential customers with service providers, such as yourself, to provide their respective service offerings. You understand and intend that you will provide the services required to perform and provide your Offerings to customers strictly as an independently-owned and operated business enterprise, and not as an employee, worker, agent, joint venture, partner or franchisee of Schedulicity or any customer for any purpose.  Schedulicity does not guarantee any minimum number of reservations through the Services.

Schedulicity and you hereby acknowledge and agree that the services required to perform and provide your Offerings are outside the usual course of Schedulicity’s business and that such services will be unrelated to and performed outside of Schedulicity’s business.

The Offerings and services you provide to an end user customer are fully and entirely your responsibility. Schedulicity is not responsible or liable for the actions or inactions of a customer or other third party in relation to the services provided by you. You understand, therefore, that by using the Services, you will be introduced to third parties in relation to whom Schedulicity has not conducted any background or reference checking, that may be potentially dangerous, and that you use the Services at your own risk.  The relationship between you and any customer who reserves your Offering is solely between such parties and Schedulicity disclaims any and all responsibility with respect thereto. YOU AGREE THAT SCHEDULICITY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, COST, DAMAGE, INJURY (INCLUDING BODILY INJURY, DEATH OF ANY PERSON, THEFT OR DAMAGE TO PROPERTY) OR OTHER LIABILITY OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS BETWEEN YOU AND A CUSTOMER, AS THE RESULT OF THE PRESENCE OF SUCH PARTIES ON THE SERVICES, OR THE PROVISION OF SERVICES, SUPPLIES AND OTHER MATERIALS BETWEEN YOU AND A CUSTOMER, AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIMS AGAINST SCHEDULICITY ARISING FROM OR RELATED TO YOUR RELATIONSHIP WITH ANY THIRD PARTY WITH WHOM YOU COME IN CONTACT WITH THROUGH THE SERVICES (WHETHER DIRECTLY OR INDIRECTLY).

9. Mobile Services; App Stores; Client Text Reminders

Mobile Services: The Services include certain services that are available via a mobile device, including (i) the ability to browse the Services and the Website from a mobile device and (ii) the ability to access certain features and content through the App (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

App License: Subject to these Terms of Service, Schedulicity hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the App on one mobile device and (b) use the App for your own personal use solely to access and use the Services. For clarity, the foregoing is not intended to prohibit you from installing the App for another device on which you also agreed to these Terms of Service. Each instance of the Terms of Service that you agree to in connection with downloading a App grants you the aforementioned rights in connection with the installation and use of the App on one device.

Ownership; Restrictions: The technology and software underlying the Services or distributed in connection therewith are the property of Schedulicity, its affiliates, and its licensors (including the App, the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Schedulicity.

Special Notice for International Use; Export Controls: The Services are based in the United States. If you access or use the Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

App Stores: You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store, Google Play or another distribution channel (“App Store”). You acknowledge that the Terms of Service are between you and Schedulicity  and not with the App Store. Schedulicity, not the App Store, is solely responsible for the App, the content thereof, maintenance, support services, and warranty thereof, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Service and will have the right to enforce them.

Apple-Enabled Software: With respect to Apps that are made available for your use in connection with an Apple-branded product (the, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:

  • Schedulicity and you acknowledge that these Terms of Service are concluded between Schedulicity and you only, and not with Apple Inc. (“Apple”), and that as between Schedulicity and Apple, Schedulicity, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
  • You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
  • Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions.
  • Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
  • Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Schedulicity’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
  • Schedulicity and you acknowledge that Schedulicity, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
  • In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Schedulicity and Apple, Schedulicity, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
  • You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
  • If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Schedulicity as follows:

Schedulicity, Inc

4555 Valley Commons Drive

Bozeman, MT 59718

Phone: 406-582-0494

Email: support@schedulicity.com

Schedulicity and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.

Google-Sourced Software: The following applies to any App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms of Service are between you and Schedulicity only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Schedulicity, and not Google, is solely responsible for Schedulicity’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as it relates to Schedulicity’s Google-Sourced Software.

Open Source Software: The Website and App may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found at: https://www.schedulicity.com/essentials/third-party-open-source-software.To view the open-source and third-party components used in the iOS business and iOS consumer app follow these steps:

  1. Open Settings in your iOS Device
  2. Scroll to the Schedulicity Business or Schedulicity Consumer app
  3. Tap on the app
  4. Select Acknowledgements 

If required by any license for particular open source software, Schedulicity makes such open source software, and Schedulicity’s modifications to that open source software (if any), available by written request to support@schedulicity.com. Copyrights to the open source software are held by the respective copyright holders indicated therein.

Client Text Reminders: As part of the Services you may elect to purchase a subscription to send automated SMS text reminders to your clients (“Messaging Services”).  You are solely responsible and liable for your use of the Messaging Services.  You hereby represent and warrant that your use of the Messaging Services will comply with all applicable laws, rules and regulations, including, without limitation, The Telephone Consumer Protection Act of 1991 (“TCPA”). You further represent and warrant that in connection with your use of the Messaging Services you will obtain all necessary prior express consent, prior express written consent, invitation or permission from the recipients of such communications (including the requisite consent to share their contact information with Schedulicity) as may be required under the TCPA or other applicable law, and will institute and maintain the requisite opt-out procedures and other policies required under the TCPA. You expressly acknowledge and agree that you are not authorized to use Messaging Services absent your full compliance with this provision.

10. Termination

SCHEDULICITY may terminate this Agreement and/or your Offering listing if you fail to comply with any term or condition of this Agreement, including, without limitation, your failure to pay any subscription fees or transaction fees associated with your Account. SCHEDULICITY also reserves the right to terminate offering the Services at any time.

Upon termination, your right to access or use business data immediately ceases, and SCHEDULICITY will have no obligation to maintain or forward any business data.

After termination, SCHEDULICITY may continue to communicate with you via email with respect to new enhancements of the Services or other matters relating to the Services.

11. Pricing and Billing

You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You will be responsible for payment of the applicable fee for any Services at the time you upgrade to any paid subscription package in your Account. All fees for the Services are non-refundable.

The pricing and billing cycle for your subscription will be as set forth in a pricing schedule available in connection with the Services when you select the applicable paid subscription package within your Account. Upgrades may be applied at any point and will be instantly accessible in your Account. A monthly fee will be charged for upgrading, which may vary depending on the number of providers associated with the Account. Some features may require payment of a per transaction fee in addition to the monthly fee. The billing cycle will begin with the date when the applicable subscription package is selected within your Account. You may downgrade your subscription at any time without cancelling your Account; provided that, you will not be entitled to a refund. Upon downgrading your subscription package, your ability to access applicable features within the terminated subscription package will immediately cease.

SCHEDULICITY reserves the right to change its pricing at any time upon two (2) weeks’ written notice to you. Such notice may take the form of an email. If notice of a change in pricing does not reach you because you failed to provide us with timely notice of a change in your contact information, that change in pricing will go into effect two (2) weeks after our attempt to provide you with notice.

You must provide SCHEDULICITY or its designated agent with valid credit card information as a condition to continue using and subscribing to any of SCHEDULICITY’s paid Services. You may maintain a subscription without providing any credit card information if you choose to use SCHEDULICITY Services that are available free of charge. If you subscribe to any of SCHEDULICITY’s paid Services, you agree to provide SCHEDULICITY with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, SCHEDULICITY reserves the right to terminate this Agreement and/or your access to the Services in addition to pursuing any other legal remedies.

Your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at SCHEDULICITY’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your paid subscription package by logging into and going to the “Cancel Subscription” page of your “Account Settings” page. If you cancel your paid subscription, such cancellation will be effective immediately, you will no longer be able to access the paid Services, and you will not receive a refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing to the paid Services, you authorize SCHEDULICITY to charge your Payment Provider (as defined below) now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if SCHEDULICITY does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that SCHEDULICITY may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

WE DO NOT PROCESS PAYMENT FOR ANY SERVICES. To facilitate payment for subscriptions via bank account, credit card, or debit card, we use third-party payment processors, including Stripe Inc. (“Stripe”) and its affiliates (“Stripe”, together with any other third-party payment processors, “Payment Processors”). These payment processing services are provided by the Payment Processors and are subject to the applicable Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements, including, without limitation, the Stripe Terms of Service, located at https://stripe.com/us/legal (collectively, the “Stripe Services Agreement”, and together with any other third-party payment processors terms, the “Payment Processor Agreements”). By agreeing to these Terms of Service, users that use the payment functions of the Services also agree to be bound by the applicable Payment Processor Agreement for the payment function the user is using, as the same may be modified by the applicable Payment Processor from time to time. As a condition of Schedulicity enabling payment processing services through the Payment Processors, you represent and warrant to Schedulicity that all information you provide about your payment instruments and/or bank accounts is true and that you are authorized to use such payment instrument and/or bank account, as applicable. You also authorize Schedulicity to share such information and other transaction information related to your payment for the Service with the Payment Processors. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You hereby authorize the applicable Payment Processor to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in payment for your use of the Service. Please contact the applicable Payment Processor for more information.

As part of the Services you may purchase a subscription to one of our payment partners listed on our pricing page, in order to process payments of end user customers.  Your use of the services of any payment partners is subject to the applicable Payment Processor Agreements.  You acknowledge and agree that Schedulicity is not responsible or liable for any services provided by the Payment Processors.

As indicated on the Services, certain subscription offerings may entail collection of fees from end user customers by the Payment Processors with a certain percentage or amount is retained by the Payment Processor and paid to Schedulicity with the balance being remitted to you.  Before purchasing a subscription we encourage you to carefully review the corresponding terms and conditions set forth in the Services.  By purchasing a subscription you are agreeing to such terms and conditions.

12. Third Party Services and Charges

Schedulicity may work with third party service providers to help administer certain features of the Services. In order to use certain features of the Services and make them available to your clients, you may be required to sign up for an account with a third-party service provider who enables those features. For example, in order to use certain features related to credit card payments, you may be required to set up an account with Stripe or Clearent. Third-party service providers, such as Stripe and Clearent, may charge fees in connection with their services, which are separate from the fees charged by Schedulicity for our Services. SCHEDULICITY has no control over the provision of services by third parties and makes no guarantees regarding the availability, performance, or satisfactory quality of any services provided by third parties. Any dispute you may have regarding services provided by third parties should be addressed to those parties, not to Schedulicity.

13. Support

SCHEDULICITY may use phone calls, live chat, chat, in-app messaging, text messages and email messages to communicate with you about your account. Schedulicity may provide limited technical support, in SCHEDULICITY’s sole discretion. You acknowledge and agree that in order to provide the Services, Schedulicity may contact you at any of the numbers or other contacts that you provided.  Schedulicity  may use remote desktop for support; in that event, you agree to release Schedulicity from any and all liability associated with using remote desktop to provide support to you.

14. Monitoring, Investigation and Enforcement

We may investigate any complaints or reported violations of this Agreement. At our absolute discretion, we reserve the right to take any of the following actions as we deem appropriate:

  • contact you;
  • suspend or terminate your account;
  • stop any purchase transaction;
  • prevent or restrict access to the Website, App, Service or particular Content; and/or
  • remove any prohibited Content on the Website, App, and/or Service.

We also reserve the right to report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other governmental officials. In order to cooperate with governmental requests, to protect our systems and users, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted Content. We will report illegal conduct to law enforcement and we will cooperate to ensure that violators are prosecuted to the fullest extent of the law. We reserve the right, at our sole discretion, to pursue a civil lawsuit or criminal prosecution for any alleged or actual illegal activities involving our Website, App or Service.

15. International Data

Schedulicity’s servers and operations are located primarily in the United States and our policies and procedures are based primarily on United States law. To the extent that you transfer data to Schedulicity regarding non-US individuals, you agree to comply with all local laws, rules, and regulations including all laws, rules, and regulations in effect in the country in which the non-US individual resides. The Services are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which that would subject Schedulicity or its affiliates to any registration requirement within such jurisdiction or country. YOU FURTHER AGREE TO INDEMNIFY AND HOLD HARMLESS SCHEDULICITY FROM ANY CLAIMS, DAMAGES, OR LOSSES ARISING OUT OF OR RELATED TO THE UNLAWFUL PROCESSING OF THE DATA OF NON-US INDIVIDUALS.

16. Warranties

Each party hereby represents and warrants to the other party that: (a) it has the power and authority to enter into this Agreement and is permitted by applicable law and regulations to enter into this Agreement, (b) it will comply with all applicable laws in the performance of its obligations under this Agreement, in particular with any federal and state rules regarding student records, privacy, and the commercial use of student information, including but not limited to the Family Educational Rights and Privacy Act; and (c) it is not subject to any other agreement or legal obligation that would conflict with its ability to perform its obligations under this Agreement.

You represent that you will provide the Offerings in accordance with best industry standards for similar services and shall ensure that all assistants, helpers, subcontractors and other personnel used by Professional in relation to the delivery of such services shall do likewise, including the completion of all Offerings that are reserved through the Services.

17. Disclaimer of Warranties

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN SECTION 16 ABOVE, SCHEDULICITY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER IMPLIED WARRANTIES. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THERE IS NO WARRANTY OF NON-INFRINGEMENT OR TITLE. SCHEDULICITY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SCHEDULICITY, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES OUTSIDE THIS AGREEMENT MAY CREATE A WARRANTY. SCHEDULICITY WILL HAVE NO RESPONSIBILITY FOR ANY LOSS ARISING FROM ANY ALTERATION OF THE SERVICES BY YOU OR ANY THIRD PARTY, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SCHEDULICITY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ADDITIONALLY, YOU ACKNOWLEDGE AND AGREE THAT NOT ALL MESSAGES SENT THROUGH USE OF THE SERVICES WILL BE RECEIVED SUCCESSFULLY BY THEIR INTENDED RECIPIENTS.

18. Limitation of Damages and Liability; Release

TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SCHEDULICITY NOR ITS DISTRIBUTORS WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SCHEDULICITY OR ITS REPRESENTATIVES HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SCHEDULICITY’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE RELEVANT SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.

You hereby release the Schedulicity Parties from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of this Agreement or your use of the Website, App and/or Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Schedulicity Party or for such party’s fraud  or misrepresentation of any material fact in connection with the Website or any Services (excluding any Service Provider’s products or services) provided hereunder.

19. Use of SCHEDULICITY Trademarks and Marketing Communications

Schedulicity will have the right to include Schedulicity trademarks or slogans on or in data reports (hard copy and electronic) generated by the Services.

Schedulicity may include its own logo, as well as advertising for SCHEDULICITY, its partners, or Schedulicity.com or any successor website, on any Services interface, including those interfaces that your customers may see.

You acknowledge and agree that as a result of using our Services to make available or accept online appointments, your business may be automatically listed on Schedulicity.com or any successor website in a list of services / service providers using our Services.

You agree that Schedulicity can disclose the fact that you are a customer and that you are listed at Schedulicity.com.

For every email message sent in connection with the Services, you acknowledge and agree that Schedulicity may add an identifying footer stating “Powered by Schedulicity” or a similar message that may act as a hyperlink to a web site of Schedulicity’s choosing.

20. Data Rights and Conversion

Schedulicity does not guarantee the accuracy or completeness of any data conversion or data import for any data you have provided to Schedulicity.

Schedulicity will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data relating to your business.

Schedulicity’s use of data and information obtained from Website or App users seeking services from you is subject to the terms of Schedulicity’s privacy policy in effect during the term of this Agreement.

21. Commercial Email Restrictions

By using the Services, you represent and warrant that all of the individuals on any distribution list you import into the Services for purposes of sending email to such individuals are persons with whom you have an existing business relationship.

You agree that you will use the Services only in compliance with this Agreement, the CAN-SPAM Act of 2003, as amended from time to time and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). Further, in the event that this representation and warranty is false, you agree to indemnify SCHEDULICITY for all damages, penalties and attorney’s fees incurred as a result. Without limiting the foregoing, you agree that you will not use the Services to send any commercial email message (as that term is defined in the CAN-SPAM Act of 2003, as amended from time to time) to any person who has opted out or otherwise objected to receive such messages from you.

22. HIPAA

If you are a business subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), you already recognize the importance of protecting your clients’ personal health information. Schedulicity has employed the following technical safeguards to assist you with establishing or maintaining the HIPAA compliance of your practice:

·       Unique user identification and authentication: Schedulicity users must have a unique user name and password that meets rigid complexity requirements to access the system.

·       Emergency access and data integrity: Schedulicity is hosted behind a standalone firewall in a secure, controlled-access, ISO/IEC27001-Certified, Level 1 PCI-DSS compliant data center that is environmentally controlled and serviced by redundant power and communication lines. Your data is stored on a redundant Storage Area Network that is backed up daily and supported by network operations 24x7x365 to ensure your data is highly available.

·       Automatic logoff: Schedulicity users are automatically logged off their sessions after a period of inactivity or when signed in to a different Schedulicity account in the same browser session.

·       Auditing: Schedulicity logs users who create, edit, and delete client and appointment data.

·       Secure data transmission: Schedulicity encrypts all transmitted data using 128-bit SSL encryption.

We hope this description of the technical safeguards employed by Schedulicity helps you determine whether the use of Schedulicity is appropriate in your business. Schedulicity cannot provide legal guidance regarding your use of the Services as they pertain to HIPAA compliance.

23. Indemnification

You will indemnify, hold harmless, and defend SCHEDULICITY and its subsidiary and parent entities, predecessors, successors, affiliates, and assigns, and all of their respective current and former officers, directors, members, shareholders, agents, and employees (the “Indemnified Parties”) from any and all actions, causes of action, suits, proceedings, claims, or demands of any third party (each a “Claim”) and all resulting judgments, bona fide settlements, penalties, damages, losses, liabilities, costs, and expenses (including without limitation reasonable attorneys’ fees and costs), that arise out of: (a) your breach of this Agreement, (b) the conduct of your business and your Offerings, (c) Indemnified Parties’ use of any of your Content, Likeness and Your Data as permitted hereunder,  (d) any negligent act or omission by you, or (e) any personal injury, death or property damage claim that arises out of or relates to the Offerings you make available through this Agreement. SCHEDULICITY may, at its expense, employ separate counsel to monitor and participate in the defense of any Claim. SCHEDULICITY will provide you with reasonably prompt notice in writing of any Claim.

24. Dispute Resolution. 

24.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, App, or Services, or to any aspect of your relationship with SCHEDULICITY, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or SCHEDULICITY may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement. You agree that, by entering into this Terms of Service, you and Schedulicity are each waiving the right to a trial by jury or to participate in a class action.  Your rights will be determined by a neutral arbitrator, not a judge or jury. 

24.2 Pre-Arbitration Dispute Resolution.  Schedulicity is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the provider’s satisfaction by emailing Schedulicity support at support@schedulicity.com  If such efforts prove unsuccessful, a party who intends to seek arbitration must follow the procedure set out in Section 24.2.  If Schedulicity and you do not resolve the claim within sixty (60) calendar days after the letter is received as set out in Section 24.2, you or Schedulicity may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by Schedulicity or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Schedulicity is entitled.

24.3 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim us, including the specific relief sought,  at Schedulicity, 4555 Valley Commons Drive, Bozeman, MT 59718. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If there is any inconsistency between any term of the JAMS rules and any term of this Arbitration Agreement, the applicable terms of the Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration.  Unless You and Schedulicity agree otherwise, any arbitration hearings will take place in a mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

24.4 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Schedulicity. The arbitrator must also follow the provisions of these Terms of Service as a court would. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the JAMS rules.

24.7 Severability. Without limiting the severability provision in Section 24.6 of the this Terms of Service, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Section 24.6 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.   Except as provided in subsection 24.6, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

24.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SCHEDULICITY.

24.10 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

25. General

The communications between you and SCHEDULICITY use electronic means, whether you visit the Website or send SCHEDULICITY e-mails, or whether SCHEDULICITY posts notices on the Website, within the App or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SCHEDULICITY in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SCHEDULICITY provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

You may not sublicense, assign, or transfer this Agreement in whole or in part, without our prior written consent. SCHEDULICITY may sublicense, assign or transfer this Agreement or any or all of its rights and obligations under it. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is void and will automatically terminate this license.

If any of the provisions of this Agreement are held to be in violation of applicable law, void or unenforceable, then such provisions are waived or amended to the extent necessary for the Agreement to be otherwise enforceable.

This Agreement will be governed by the laws of the State of Montana, United States of America, without regard to its conflict of laws provisions.

You agree to submit to the exclusive jurisdiction of the courts in or with jurisdiction for Gallatin County, State of Montana for the resolution of any dispute or claim arising out of or relating to this Agreement. Subject to Section 24, each party hereby submits to the exclusive jurisdiction and venue in such courts. Each party waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.

The prevailing party in any legal action or arbitration arising out of this Agreement will be entitled to reimbursement of its expenses, including court costs and reasonable attorneys’ fees, in addition to any other rights and remedies such party may have.

You and SCHEDULICITY are independent contractors with respect to one another, and nothing in this Agreement will be interpreted to create any agency, joint venture, employment or partnership relationship.

For a reasonable time period, each party will be excused from delay or failure in performance due to causes beyond such party’s reasonable control including without limitation, acts of God, government action, regulations, riots, wars, floods, and earthquakes.

This Agreement is for the benefit of, and will be enforceable by, the parties only. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement.

If you have any questions concerning this Agreement, you should contact SCHEDULICITY at support@schedulicity.com.

THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND SCHEDULICITY AND THIS AGREEMENT SUPERSEDES ANY PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND SCHEDULICITY RELATING TO ITS SUBJECT MATTER.

26. Export

You may not use, export, import, or transfer the App except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the App, and any other applicable laws. In particular, but without limitation, the App may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the App, 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.

Third Party Open Source Software