Terms of Service Policy
Last Updated June 21, 2023
Thank you for choosing SalonTouch for your business. When you use our products and services you are agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations.
Interactive Designs, Inc. d/b/a SunTouch/SalonTouch/SalonTouch Studio (hereinafter referred to as “SalonTouch”), provides desktop and online business management software services designed mainly for businesses in the salon, esthetics, and other similar industries. Services may also include email and text services either through SalonTouch or a third-party. Customers access these services via the login page designated by SalonTouch. Some Services described on the SalonTouch Sites may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries, and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.
Before accessing and using these services, Customer must read and agree to be bound by the terms and provisions set forth below and so indicate by clicking on the appropriate acceptance box. Furthermore, Customer’s access to or use of these services also affirms Customer’s assent to these terms and provisions. Unless explicitly stated otherwise, any additional features that augment or enhance SalonTouch or the current Services will be subject to the terms and conditions of this agreement.
This Agreement becomes effective on the earlier of: (a) the date you accept this Agreement by clicking the appropriate acceptance box; or (b) the date that Customer first accesses or uses the Services (the “Effective Date”).
Interactive Designs, Inc. d/b/a SunTouch/SalonTouch/SalonTouch Studio (hereinafter referred to as “SalonTouch”), provides desktop and online business management software services designed mainly for businesses in the salon, esthetics, and other similar industries. Services may also include email and text services either through SalonTouch or a third-party. Customers access these services via the login page designated by SalonTouch. Some Services described on the SalonTouch Sites may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries, and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.
Before accessing and using these services, Customer must read and agree to be bound by the terms and provisions set forth below and so indicate by clicking on the appropriate acceptance box. Furthermore, Customer’s access to or use of these services also affirms Customer’s assent to these terms and provisions. Unless explicitly stated otherwise, any additional features that augment or enhance SalonTouch or the current Services will be subject to the terms and conditions of this agreement.
This Agreement becomes effective on the earlier of: (a) the date you accept this Agreement by clicking the appropriate acceptance box; or (b) the date that Customer first accesses or uses the Services (the “Effective Date”).
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1. DEFINITIONS
“Administrator(s)” means the User(s) designated by Customer who are responsible for administering the Services and who are issued an Administrator login by SalonTouch.
“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with Customer, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement, or other contractual arrangement. “Affiliate” also includes any of Customer’s business locations and any Franchisees that have been designated to receive Services under this Agreement.
“Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of SalonTouch and that does not reveal any personally identifying information.
“Agreement” means this SalonTouch Service Agreement, along with any associated Order Forms and any other provisions, policies, or agreements that are incorporated herein by reference.
“Apps” means any mobile applications or user interfaces other than the Website through which SalonTouch makes the Service available.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and Customer. Cardholder Data is a subset of End User Data.
“Confidential Information” means (a) any software utilized by SalonTouch in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including, but not limited to, the Documentation, information relating to software plans, designs, costs, prices, and names, business opportunities, personnel, research, development, or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document; (d) the terms of this Agreement; (e) personally-identifying Customer Data; each party’s proprietary technology, business processes, technical product information, and designs; (f) all communication between the Parties regarding the Services; and (g) any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by nondisclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (6) is aggregate data regarding use of SalonTouch’s products and services that does not contain any personally identifiable or Customer-specific information.
“Customer” means the customer that has executed an Order Form with SalonTouch. Any reference in this Agreement to “Customer” expressly includes access or use by that customer’s agents, employees, officers, representatives, Affiliates, End Users, and/or anyone else using that customer’s account. Acts or omissions or omissions of any such people or entities will be deemed the act or omission of the Customer for purposes of this Agreement.
“Customer Data” means all electronic data or information submitted by Customer or its Affiliates to and stored by the Services. Customer’s Data may include End User Data and Cardholder Data, but excludes Aggregated Data.
“Documentation" means SalonTouch’s online user guides, documentation, and help and training materials, as may be updated by SalonTouch from time to time, accessible at help.salontouch.com and www.salontouchstudio.com/training, and any other materials provided by SalonTouch as part of the Services. This term does not include sales or marketing materials.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data, or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Services.
“End User Data” means all data, information, or other material about an End User that Customer, an Affiliate, or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Customer’s Data that relates to specific End Users.
“End User” means a business or individual that schedules or purchases products or services from Customer through the Services or otherwise interacts with Customer through the Services.
“Franchisee” means any party that is bound by a franchise agreement with Customer, and that Customer has designated to receive Services under this Agreement. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“Initial Term” means the initial subscription term specified in the applicable Order Form, excluding any renewal terms.
“Order Form” means a SalonTouch order form for initial purchase, add-on purchase, or renewal in the name of and executed by Customer and accepted by SalonTouch, which order form specifies the Services to be provided by SalonTouch subject to the terms of this Agreement.
“Party” or “Parties” refers individually and collectively to the parties to this Agreement – SalonTouch and Customer.
“PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
“Premium Services” means SalonTouch supplemental, fee-based technical support services described at www.salontouchstudio.com/what-support-covers (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time.
“Privacy Policy” means the SalonTouch Privacy Policy accessible at www.salontouchstudio.com/privacy-policy (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time.
“Services” means the services provided by SalonTouch and described in his Agreement, including permitting use of the SalonTouch software and the SalonTouch Websites. “Services” excludes Third-Party Offerings and the SalonTouch App.
“Term” means the Initial Term specified in the applicable Order Form and any renewal terms.
“Third-Party Offerings” means any third-party products, applications, websites, implementations, or services, including Text Messaging Services (“SMS”), that the Services link to, or that interoperate with or are used in conjunction with the Services.
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Services have been purchased on an Order Form, and who have been supplied user identifications and passwords by Customer.
“Website” means www.salontouch.com, www.salontouchstudio.com, www.salontouchstudio.net, www.lookitbookit.com and any other websites through which SalonTouch makes the Service available.
“Administrator(s)” means the User(s) designated by Customer who are responsible for administering the Services and who are issued an Administrator login by SalonTouch.
“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with Customer, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement, or other contractual arrangement. “Affiliate” also includes any of Customer’s business locations and any Franchisees that have been designated to receive Services under this Agreement.
“Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of SalonTouch and that does not reveal any personally identifying information.
“Agreement” means this SalonTouch Service Agreement, along with any associated Order Forms and any other provisions, policies, or agreements that are incorporated herein by reference.
“Apps” means any mobile applications or user interfaces other than the Website through which SalonTouch makes the Service available.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and Customer. Cardholder Data is a subset of End User Data.
“Confidential Information” means (a) any software utilized by SalonTouch in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including, but not limited to, the Documentation, information relating to software plans, designs, costs, prices, and names, business opportunities, personnel, research, development, or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document; (d) the terms of this Agreement; (e) personally-identifying Customer Data; each party’s proprietary technology, business processes, technical product information, and designs; (f) all communication between the Parties regarding the Services; and (g) any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by nondisclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (6) is aggregate data regarding use of SalonTouch’s products and services that does not contain any personally identifiable or Customer-specific information.
“Customer” means the customer that has executed an Order Form with SalonTouch. Any reference in this Agreement to “Customer” expressly includes access or use by that customer’s agents, employees, officers, representatives, Affiliates, End Users, and/or anyone else using that customer’s account. Acts or omissions or omissions of any such people or entities will be deemed the act or omission of the Customer for purposes of this Agreement.
“Customer Data” means all electronic data or information submitted by Customer or its Affiliates to and stored by the Services. Customer’s Data may include End User Data and Cardholder Data, but excludes Aggregated Data.
“Documentation" means SalonTouch’s online user guides, documentation, and help and training materials, as may be updated by SalonTouch from time to time, accessible at help.salontouch.com and www.salontouchstudio.com/training, and any other materials provided by SalonTouch as part of the Services. This term does not include sales or marketing materials.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data, or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Services.
“End User Data” means all data, information, or other material about an End User that Customer, an Affiliate, or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Customer’s Data that relates to specific End Users.
“End User” means a business or individual that schedules or purchases products or services from Customer through the Services or otherwise interacts with Customer through the Services.
“Franchisee” means any party that is bound by a franchise agreement with Customer, and that Customer has designated to receive Services under this Agreement. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“Initial Term” means the initial subscription term specified in the applicable Order Form, excluding any renewal terms.
“Order Form” means a SalonTouch order form for initial purchase, add-on purchase, or renewal in the name of and executed by Customer and accepted by SalonTouch, which order form specifies the Services to be provided by SalonTouch subject to the terms of this Agreement.
“Party” or “Parties” refers individually and collectively to the parties to this Agreement – SalonTouch and Customer.
“PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
“Premium Services” means SalonTouch supplemental, fee-based technical support services described at www.salontouchstudio.com/what-support-covers (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time.
“Privacy Policy” means the SalonTouch Privacy Policy accessible at www.salontouchstudio.com/privacy-policy (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time.
“Services” means the services provided by SalonTouch and described in his Agreement, including permitting use of the SalonTouch software and the SalonTouch Websites. “Services” excludes Third-Party Offerings and the SalonTouch App.
“Term” means the Initial Term specified in the applicable Order Form and any renewal terms.
“Third-Party Offerings” means any third-party products, applications, websites, implementations, or services, including Text Messaging Services (“SMS”), that the Services link to, or that interoperate with or are used in conjunction with the Services.
“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Services have been purchased on an Order Form, and who have been supplied user identifications and passwords by Customer.
“Website” means www.salontouch.com, www.salontouchstudio.com, www.salontouchstudio.net, www.lookitbookit.com and any other websites through which SalonTouch makes the Service available.
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2. SALONTOUCH SERVICES
2.1. Scope of Agreement and Customer License
This Agreement, including all parts and components included above in the definition of “Agreement,” governs all aspects of Customer’s access to and use of the Services, without regard to: (1) whether such access or use occurs in connection with a free trial, a paid subscription, or other means; and (2) whether such access or use is effected via direct access, any App issued or offered by SalonTouch, any Application Program Interface issued or offered by SalonTouch, or any other means.
2.1. Scope of Agreement and Customer License
This Agreement, including all parts and components included above in the definition of “Agreement,” governs all aspects of Customer’s access to and use of the Services, without regard to: (1) whether such access or use occurs in connection with a free trial, a paid subscription, or other means; and (2) whether such access or use is effected via direct access, any App issued or offered by SalonTouch, any Application Program Interface issued or offered by SalonTouch, or any other means.
2.2. Access, Implementation, and Support
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2.2.1. Access
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SalonTouch will make the Services to which Customer has subscribed available to Customer, subject to the terms and conditions of this Agreement. During Customer’s Subscription Term, the Services will meet the service levels specified in the Service Level Agreement (“SLA”) located at www.salontouchstudio.com/sla-policy (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time. This SLA, as it may be changed or amended by SalonTouch from time to time, is incorporated herein by reference as if set forth in full and is therefore a part of this Agreement.
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2.2.2. Implementation
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Implementation and training services ordered by Customer as set forth in the applicable Order Form will be performed in accordance with SalonTouch’s customary practices for the level of services purchased. SalonTouch does not provide dedicated project management for Customer during implementation unless separately purchased. Implementation is performed remotely unless otherwise specified. SalonTouch is not responsible, and will not be liable, for Customer’s configuration decisions or the Services’ ability to allow Customer to comply with all laws and regulations in Customer’s unique circumstances, nor for any delays in implementation caused by Customer, including, but not limited to, Customer delays in providing clean and validated data, if needed, or Customer delays in making necessary business decisions with respect to the configuration of the Services.
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2.2.3. Support
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As part of the Services, Customer will have access to SalonTouch’s standard support services found at help.salontouch.com and www.salontouchstudio.com/training (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time. Customer may also purchase premium support services for an additional fee.
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3. CUSTOMER DUTIES & RESPONSIBILITIES
3.1. Required Acts
Customer must and shall:
3.1. Required Acts
Customer must and shall:
- comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Services, including, but not limited to, those related to privacy, electronic communications, personal data, and anti-spam legislation;
- require, ensure, and guarantee that Customer’s Affiliates and End Users comply with the terms of this Agreement, comply with all applicable laws, and be legally responsible for all activity occurring on, via, or in relation to Customer’s account;
- represent and warrant that the End-Users of the phone numbers in which you initiate messages to through the SalonTouch Services have consented or otherwise opted-in to the receipt of such messages as required by any applicable law or regulation. You further agree that you will include clear opt-out/unsubscribe information in your messages when required to do so by any applicable law or regulation, and that you will otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if it is applicable to your messages.
- agree to familiarize yourself with and abide by all applicable local, state, national, and international laws and regulations pertaining to your use of our Services. You are solely responsible for all acts or omissions that occur under your account, including, without limitation, the content of the messages that you create and initiate through our Services.
- provide SalonTouch with complete and accurate account information, including Customer’s legal company name, street address, e-mail address, and such other contact information as may be requested by SalonTouch. Customer is responsible for keeping Customer’s account information up to date, and Customer agrees to promptly notify SalonTouch in writing if any information changes;
- have sole responsibility for the accuracy and quality of Customer’s Data and for ensuring that Customer’s collection and use of Customer’s Data complies with applicable laws, including those related to data privacy and transmission of personal data;
- prevent unauthorized access to, or use of, the Services, and notify SalonTouch promptly of any unauthorized access or use;
- have sole responsibility for obtaining, maintaining, and paying for any hardware, telecommunications, Internet, and other services needed to use the Services;
- comply with PCI DSS anytime the Services are used to process credit cards, and be solely responsible for any liability resulting from Customer’s or any Affiliate’s handling of Cardholder Data; and
- prevent any misuse of user names or passwords associated with Customer’s account, which are for Customer’s internal use only, and be responsible to SalonTouch in relation to any such misuse.
3.2. Prohibited Acts
Customer is prohibited from and shall not:
Customer is prohibited from and shall not:
- sell, lease, license, or sublicense the Services;
- introduce into or transmit through the Services any virus, worm, trap door, back door, and/or other harmful or malicious code, files, scripts, agents, or programs;
- transmit or store infringing material in the Services;
- send any Electronic Communication or other transmission from, via, or in relation to the Services that is infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious, or that violates any privacy-related rights or laws;
- copy, reproduce, distribute, republish, display, post, or transmit in any form or by any means any portion of the Services or any other intellectual property belonging to SalonTouch unless expressly permitted by this Agreement;
- access the Services by any means other than through the interfaces that are provided or authorized by SalonTouch;
- mirror or frame any part of the Services or any other websites or online presences belonging to or operated by SalonTouch;
- incorporate any portion of the Services into any other product or service;
- create Internet links to the Services which include log-in information, user names, passwords, and/or secure cookies;
- interfere with or disrupt the integrity or performance of the Services or the data contained therein;
- attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement;
- restrict or inhibit any other person or entity from his/its lawful use of the Services;
- remove any copyright, trademark, or other proprietary rights notice from the Services;
- systematically download and store Services content;
- use any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services; and/or
- share, reveal, or otherwise provide to any third party, including, but not limited to, any competitor of SalonTouch, any SalonTouch-related user name or password.
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4. PAYMENT
4.1. Services Fees
Fees for the subscribed Services (“Subscription Fees”) are set forth on the Pricing Page of this website (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time, or as otherwise stated on an Order Form. Fees may include but not limited to software and maintenance upgrades, message credits as define in section 4.2, keywords, DIDs, usage sensitive fees and or service plans in which a portion includes software maintenance, upgrades and customer support.
4.2. Credits
Credits are considered paperless vouchers that you purchase and which facilitate the transmission of the SalonTouch Services selected by you. Both the chosen route and the destination of a message or broadcast impact the amount of credits required for each transmission of our Services. Additionally, the value of credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of credits needed to utilize the Services may change correspondingly. The pricing information, however, will always be made known beforehand through the Pricing Page on our Sites. The submission of a seemingly-valid message or broadcast will cause an associated quantity of credits to be debited from your account.
4.3. Expiration of Credits
Credits purchased as a part of a package or monthly plan (including any additional credits purchased during your monthly billing cycle as part of an upgrade to your plan) and not used within the month of purchase expire at the end of the month, unless the plan explicitly provides for a roll-over of credits. Individual anytime, nonmonthly plan credits purchased through your account automatically expire after 12 months from the date of purchase, unless otherwise stated at the time of purchase. Credits are purchased on a first-bought, first-to-expire basis. Any unused value shall be forfeited upon expiration. All prices, per-minute rates, and billing increments for credits are subject to change at any time due to fluctuations in market conditions. You may request a full refund of any unused, nonmonthly plan credits within one (1) business day of purchase. No other refunds will be given.
4.4. Right to Offer Customized Plans
Notwithstanding the above, we may, in our sole discretion, offer customized plans that provide for individualized terms concerning credit expiration, billing cycles, account maintenance fees, and other agreed-upon terms. We reserve the right to do so without publicly listing the pricing for these customized plans on our Sites.
4.5. Payment Terms
Customer agrees to pay SalonTouch the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable, and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. Customer will provide SalonTouch with valid and updated credit card information or another form of payment acceptable to SalonTouch. If Customer provides credit card information, Customer represents that Customer is authorized to use the card, and Customer authorizes SalonTouch to charge the card for all payments hereunder. By submitting payment information, Customer authorizes SalonTouch to provide that information to third parties for purposes of facilitating payment. Customer agrees to verify any information requested by SalonTouch for purposes of acknowledging or completing any payment.
4.6. Overdue Charges
Any amounts not received by the applicable due date will accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by SalonTouch within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and SalonTouch will be entitled to either suspend the Services or terminate the Agreement in accordance with the remedies set forth in this Agreement.
4.7. Changes in Fees
Upon notice to Customer, SalonTouch may increase any fees specified in an Order Form, provided the increase will not become effective until the expiration of the current Subscription Term. SalonTouch may increase any fees that are not specified in an Order Form at any time, with or without notice to Customer.
4.8. Payment Errors
If Customer believes a payment has been processed in error, Customer must provide written notice to SalonTouch within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by SalonTouch within such thirty (30) day period, the payment will be deemed final.
4.9. Taxes
All Fees payable under the applicable Order Form are exclusive of and do not include taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer’s receipt or use of the Services, excluding taxes based on SalonTouch’s gross or net income. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide SalonTouch with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
4.1. Services Fees
Fees for the subscribed Services (“Subscription Fees”) are set forth on the Pricing Page of this website (or such other URL as specified by SalonTouch), as may be updated by SalonTouch from time to time, or as otherwise stated on an Order Form. Fees may include but not limited to software and maintenance upgrades, message credits as define in section 4.2, keywords, DIDs, usage sensitive fees and or service plans in which a portion includes software maintenance, upgrades and customer support.
4.2. Credits
Credits are considered paperless vouchers that you purchase and which facilitate the transmission of the SalonTouch Services selected by you. Both the chosen route and the destination of a message or broadcast impact the amount of credits required for each transmission of our Services. Additionally, the value of credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of credits needed to utilize the Services may change correspondingly. The pricing information, however, will always be made known beforehand through the Pricing Page on our Sites. The submission of a seemingly-valid message or broadcast will cause an associated quantity of credits to be debited from your account.
4.3. Expiration of Credits
Credits purchased as a part of a package or monthly plan (including any additional credits purchased during your monthly billing cycle as part of an upgrade to your plan) and not used within the month of purchase expire at the end of the month, unless the plan explicitly provides for a roll-over of credits. Individual anytime, nonmonthly plan credits purchased through your account automatically expire after 12 months from the date of purchase, unless otherwise stated at the time of purchase. Credits are purchased on a first-bought, first-to-expire basis. Any unused value shall be forfeited upon expiration. All prices, per-minute rates, and billing increments for credits are subject to change at any time due to fluctuations in market conditions. You may request a full refund of any unused, nonmonthly plan credits within one (1) business day of purchase. No other refunds will be given.
4.4. Right to Offer Customized Plans
Notwithstanding the above, we may, in our sole discretion, offer customized plans that provide for individualized terms concerning credit expiration, billing cycles, account maintenance fees, and other agreed-upon terms. We reserve the right to do so without publicly listing the pricing for these customized plans on our Sites.
4.5. Payment Terms
Customer agrees to pay SalonTouch the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable, and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. Customer will provide SalonTouch with valid and updated credit card information or another form of payment acceptable to SalonTouch. If Customer provides credit card information, Customer represents that Customer is authorized to use the card, and Customer authorizes SalonTouch to charge the card for all payments hereunder. By submitting payment information, Customer authorizes SalonTouch to provide that information to third parties for purposes of facilitating payment. Customer agrees to verify any information requested by SalonTouch for purposes of acknowledging or completing any payment.
4.6. Overdue Charges
Any amounts not received by the applicable due date will accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by SalonTouch within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and SalonTouch will be entitled to either suspend the Services or terminate the Agreement in accordance with the remedies set forth in this Agreement.
4.7. Changes in Fees
Upon notice to Customer, SalonTouch may increase any fees specified in an Order Form, provided the increase will not become effective until the expiration of the current Subscription Term. SalonTouch may increase any fees that are not specified in an Order Form at any time, with or without notice to Customer.
4.8. Payment Errors
If Customer believes a payment has been processed in error, Customer must provide written notice to SalonTouch within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by SalonTouch within such thirty (30) day period, the payment will be deemed final.
4.9. Taxes
All Fees payable under the applicable Order Form are exclusive of and do not include taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer’s receipt or use of the Services, excluding taxes based on SalonTouch’s gross or net income. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide SalonTouch with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
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5. GENERAL LICENSES AND INTELLECTUAL PROPERTY RIGHTS
5.1. SalonTouch Intellectual Property
Customer agrees that all rights, title, and interest in and to all intellectual property rights in the Services, Documentation (including all updates, enhancements, and derivative works thereof and thereto), SalonTouch Data, and Aggregated Data are owned exclusively by SalonTouch. Except as provided in this Agreement, the time-limited access license that represents Customer’s subscription does not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. In addition, SalonTouch shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the operation of the Services. Any rights not expressly granted herein are reserved by SalonTouch. SalonTouch service marks and trademarks, logos, and product and service names are marks of SalonTouch (the “SalonTouch”). Customer agrees not to display or use the SalonTouch Marks in any manner without SalonTouch’s express prior written permission. The trademarks, logos, and service marks of Third-Party Application providers are the property of such third parties. Customer is not permitted to use those marks without the prior written consent of such third party who may own the mark.
5.2. License Grant to Customer
Subject to the terms and conditions of this Agreement, SalonTouch hereby grants to Customer a limited, non-exclusive, non-transferable, non-sub-licensable, revocable license, and right to use the Services set forth in an Order Form, during the Subscription Term and solely for Customer’s internal business purposes. Customer will not: (a) modify, copy, or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including, but not limited to, any software utilized by SalonTouch in the provision of the Services; (d) access or use (or allow a third party to access or use) the data or services Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces, or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
5.3. License Grant to SalonTouch
Customer hereby grants to SalonTouch and its affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license: (a) to modify, copy, distribute, and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction, or other feedback or information provided by Customer, Affiliates, or End Users relating to the Services or SalonTouch’s business; and (b) to use Customer’s business name(s), trademarks, service marks, or logos (collectively, “Customer’s Marks”) in connection with providing the Services and for marketing and promotional purposes in connection with SalonTouch’s business. SalonTouch agrees that any use by SalonTouch of any of Customer’s Marks will inure solely to the benefit and goodwill of Customer’s business. Other than those rights specifically granted to SalonTouch herein, all right, title, and interest in and to Customer’s Marks are expressly reserved by Customer.
5.1. SalonTouch Intellectual Property
Customer agrees that all rights, title, and interest in and to all intellectual property rights in the Services, Documentation (including all updates, enhancements, and derivative works thereof and thereto), SalonTouch Data, and Aggregated Data are owned exclusively by SalonTouch. Except as provided in this Agreement, the time-limited access license that represents Customer’s subscription does not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. In addition, SalonTouch shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the operation of the Services. Any rights not expressly granted herein are reserved by SalonTouch. SalonTouch service marks and trademarks, logos, and product and service names are marks of SalonTouch (the “SalonTouch”). Customer agrees not to display or use the SalonTouch Marks in any manner without SalonTouch’s express prior written permission. The trademarks, logos, and service marks of Third-Party Application providers are the property of such third parties. Customer is not permitted to use those marks without the prior written consent of such third party who may own the mark.
5.2. License Grant to Customer
Subject to the terms and conditions of this Agreement, SalonTouch hereby grants to Customer a limited, non-exclusive, non-transferable, non-sub-licensable, revocable license, and right to use the Services set forth in an Order Form, during the Subscription Term and solely for Customer’s internal business purposes. Customer will not: (a) modify, copy, or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including, but not limited to, any software utilized by SalonTouch in the provision of the Services; (d) access or use (or allow a third party to access or use) the data or services Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces, or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
5.3. License Grant to SalonTouch
Customer hereby grants to SalonTouch and its affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license: (a) to modify, copy, distribute, and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction, or other feedback or information provided by Customer, Affiliates, or End Users relating to the Services or SalonTouch’s business; and (b) to use Customer’s business name(s), trademarks, service marks, or logos (collectively, “Customer’s Marks”) in connection with providing the Services and for marketing and promotional purposes in connection with SalonTouch’s business. SalonTouch agrees that any use by SalonTouch of any of Customer’s Marks will inure solely to the benefit and goodwill of Customer’s business. Other than those rights specifically granted to SalonTouch herein, all right, title, and interest in and to Customer’s Marks are expressly reserved by Customer.
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6. DATA OWNERSHIP AND USE
6.1. Customer Data
As between SalonTouch and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer, provided that in the event SalonTouch aggregates and/or anonymizes Customer Data resulting from Customer’s use of any Services and aggregates such Customer Data with that of other customers in a way that does not reveal Customer’s identity or personally identifiable information (“Aggregated Data” as defined above), SalonTouch owns this Aggregated Data.
Customer hereby grants to SalonTouch a nonexclusive, worldwide, assignable, sub-licensable, fully paid, and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of, and otherwise use Customer’s Data for the purposes of providing, improving, and developing SalonTouch’s products and services and/or complementary products and services of our partners. Customer represents and warrants to SalonTouch that Customer has all rights necessary to grant the licenses in this section and that Customer’s provision of Customer’s Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
6.2. SalonTouch Data and Aggregated Data
Notwithstanding subsection A. immediately above, all right, title, and interest in any data or information collected by SalonTouch independently and without access to, reference to, or use of any of Customer’s Data, including, without limitation, any data or information SalonTouch obtains about End Users through the SalonTouch App (whether the same as Customer’s Data or otherwise), will be solely owned by SalonTouch (collectively, “SalonTouch ”). As noted above, SalonTouch also owns all Aggregated Data and may, in its sole discretion, utilize Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about Customer or any End Users.
6.3. Personal Information
Our Privacy Policy governs how SalonTouch collects and uses personal information that is submitted through the Services. By accessing or using the Services, Customer agrees that Customer has read and thereby accepts the Privacy Policy.
6.4. Protection and Security
During the Subscription Term, SalonTouch will maintain administrative, physical, and technical safeguards designed for the protection and integrity of Customer’s Data. SalonTouch will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data.
6.5. Transmission of Data
The Services allows Customer to send Electronic Communications directly to and from SalonTouch and to third parties. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Services. Customer expressly consents to SalonTouch’s receipt and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet and over various networks, only part of which may be owned and/or operated by SalonTouch. We transmit messages initiated by you or sent to you by others through different routes, and the level of reliability and support for special features varies according to the route. SalonTouch’s influence over the timing of the transmission of your messages is only within the technical constraints imposed upon SalonTouch. While SalonTouch shall use commercially reasonable efforts to transmit your messages to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. SalonTouch only provides that the Services are processed correctly and further transmitted by SalonTouch to the applicable network. SalonTouch is not responsible for the final delivery of any communication initiated through SalonTouch’s Services, as this is out of our control and is the responsibility of downstream communications carriers. You should know that communications carriers assign text messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. SalonTouch is not liable for any loss incurred by the failure of a message and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from SalonTouch for any such non-deliveries. Furthermore, you agree that messages are deemed to have zero value. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. SalonTouch uses encryption in various locations and methodologies within the Services and the infrastructure working behind it. Customer Data is encrypted while in transit to and from the Services. Nonetheless, SalonTouch is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted, or stored without authorization during the transmission of any data across networks not owned and/or operated by SalonTouch, including, but not limited to, the Internet and Customer’s local network.
6.6. Return of Customer Data
Customer agrees that following the termination or expiration of this Agreement, SalonTouch may immediately deactivate Customer’s account and access to the Services and, at any time later than the ninetieth (90th) day following termination or expiration and in SalonTouch’s sole discretion, shall be entitled permanently and irretrievably to delete Customer’s account and data from SalonTouch’s servers. Customer further agrees that SalonTouch shall not be liable to Customer nor to any third party for deletion of Customer Data, provided that SalonTouch is in compliance with the terms of this paragraph.
6.7. Unauthorized Disclosure
If either Party believes that there has been a disclosure of Customer’s Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
6.8. Data-Related Disputes
Customer is solely responsible for resolving disputes regarding ownership or access to Customer’s Data, including those involving any current or former owners, co-owners, employees, or contractors of Customer’s business. Customer acknowledges and agrees that SalonTouch has no obligation whatsoever to resolve or intervene in such disputes. Customer acknowledges that SalonTouch shall not be liable for any good-faith acts or omissions to act taken by SalonTouch that arise from or relate in any way to disputes described in this paragraph.
6.1. Customer Data
As between SalonTouch and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer, provided that in the event SalonTouch aggregates and/or anonymizes Customer Data resulting from Customer’s use of any Services and aggregates such Customer Data with that of other customers in a way that does not reveal Customer’s identity or personally identifiable information (“Aggregated Data” as defined above), SalonTouch owns this Aggregated Data.
Customer hereby grants to SalonTouch a nonexclusive, worldwide, assignable, sub-licensable, fully paid, and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of, and otherwise use Customer’s Data for the purposes of providing, improving, and developing SalonTouch’s products and services and/or complementary products and services of our partners. Customer represents and warrants to SalonTouch that Customer has all rights necessary to grant the licenses in this section and that Customer’s provision of Customer’s Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
6.2. SalonTouch Data and Aggregated Data
Notwithstanding subsection A. immediately above, all right, title, and interest in any data or information collected by SalonTouch independently and without access to, reference to, or use of any of Customer’s Data, including, without limitation, any data or information SalonTouch obtains about End Users through the SalonTouch App (whether the same as Customer’s Data or otherwise), will be solely owned by SalonTouch (collectively, “SalonTouch ”). As noted above, SalonTouch also owns all Aggregated Data and may, in its sole discretion, utilize Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about Customer or any End Users.
6.3. Personal Information
Our Privacy Policy governs how SalonTouch collects and uses personal information that is submitted through the Services. By accessing or using the Services, Customer agrees that Customer has read and thereby accepts the Privacy Policy.
6.4. Protection and Security
During the Subscription Term, SalonTouch will maintain administrative, physical, and technical safeguards designed for the protection and integrity of Customer’s Data. SalonTouch will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data.
6.5. Transmission of Data
The Services allows Customer to send Electronic Communications directly to and from SalonTouch and to third parties. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Services. Customer expressly consents to SalonTouch’s receipt and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet and over various networks, only part of which may be owned and/or operated by SalonTouch. We transmit messages initiated by you or sent to you by others through different routes, and the level of reliability and support for special features varies according to the route. SalonTouch’s influence over the timing of the transmission of your messages is only within the technical constraints imposed upon SalonTouch. While SalonTouch shall use commercially reasonable efforts to transmit your messages to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. SalonTouch only provides that the Services are processed correctly and further transmitted by SalonTouch to the applicable network. SalonTouch is not responsible for the final delivery of any communication initiated through SalonTouch’s Services, as this is out of our control and is the responsibility of downstream communications carriers. You should know that communications carriers assign text messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. SalonTouch is not liable for any loss incurred by the failure of a message and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from SalonTouch for any such non-deliveries. Furthermore, you agree that messages are deemed to have zero value. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. SalonTouch uses encryption in various locations and methodologies within the Services and the infrastructure working behind it. Customer Data is encrypted while in transit to and from the Services. Nonetheless, SalonTouch is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted, or stored without authorization during the transmission of any data across networks not owned and/or operated by SalonTouch, including, but not limited to, the Internet and Customer’s local network.
6.6. Return of Customer Data
Customer agrees that following the termination or expiration of this Agreement, SalonTouch may immediately deactivate Customer’s account and access to the Services and, at any time later than the ninetieth (90th) day following termination or expiration and in SalonTouch’s sole discretion, shall be entitled permanently and irretrievably to delete Customer’s account and data from SalonTouch’s servers. Customer further agrees that SalonTouch shall not be liable to Customer nor to any third party for deletion of Customer Data, provided that SalonTouch is in compliance with the terms of this paragraph.
6.7. Unauthorized Disclosure
If either Party believes that there has been a disclosure of Customer’s Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
6.8. Data-Related Disputes
Customer is solely responsible for resolving disputes regarding ownership or access to Customer’s Data, including those involving any current or former owners, co-owners, employees, or contractors of Customer’s business. Customer acknowledges and agrees that SalonTouch has no obligation whatsoever to resolve or intervene in such disputes. Customer acknowledges that SalonTouch shall not be liable for any good-faith acts or omissions to act taken by SalonTouch that arise from or relate in any way to disputes described in this paragraph.
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7. TERM, TERMINATION, AND SUSPENSION
7.1. Term and Termination without Cause
Unless otherwise specified in an Order Form, the term of this Agreement will be month-to-month (“”). The Subscription Term commences on the Effective Date and will automatically renew on a monthly basis until either Party terminates in accordance with this Agreement. Either Party may terminate the Agreement at any time, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the final month of the Subscription Term. Unless otherwise specified in an Order Form, Subscription Fees for a given month shall be set at the pricing in effect on the first day of the pertinent month. Under no event shall SalonTouch be obligated to refund to you the reasonable value of any unused credits previously purchased by you.
7.2. Termination for Cause
SalonTouch may terminate this Agreement, effective immediately upon notice to Customer, if Customer or an Affiliate is in material breach of this Agreement. The material breaches that may trigger the termination-related rights set forth in this section include, but are not limited to, nonpayment by Customer. In the event of a termination pursuant to this subsection, in addition to other amounts Customer may owe SalonTouch, Customer must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve Customer of Customer’s obligation to pay any fees payable to SalonTouch for the period prior to the effective date of termination.
Furthermore, SalonTouch may suspend or terminate the Services (or any portion thereof) at any time without notice if SalonTouch believes: (a) that any activity or use of Services in connection with Customer’s account violates this Agreement, the intellectual property rights of a third party, or applicable laws, or is otherwise disruptive or harmful to SalonTouch or any third party, or (b) that SalonTouch is required to do so by law.
7.3. Rights on Termination or Expiration
Upon termination or expiration of this Agreement: (a) all Order Forms will automatically terminate and be of no force or effect; (b) Customer will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, SalonTouch will have no obligation to maintain Customer’s Services account or to retain or forward any data to Customer or any third party, except as required by applicable law.
Upon request by Customer within thirty (30) days following termination of this Agreement, and provided that Customer has paid SalonTouch all amounts owed under this Agreement, SalonTouch will make Customer’s Data available to Customer through SalonTouch’s standard web services or any other method deemed appropriate by SalonTouch for a period of up to thirty (30) days after receipt of such notice. After that thirty (30) day period, SalonTouch will have no obligation to retain or provide Customer’s Data, except as required by applicable law. If, at any time during the Subscription Term, Customer requires SalonTouch’s assistance in retrieving Customer’s Data, additional fees will apply.
7.1. Term and Termination without Cause
Unless otherwise specified in an Order Form, the term of this Agreement will be month-to-month (“”). The Subscription Term commences on the Effective Date and will automatically renew on a monthly basis until either Party terminates in accordance with this Agreement. Either Party may terminate the Agreement at any time, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the final month of the Subscription Term. Unless otherwise specified in an Order Form, Subscription Fees for a given month shall be set at the pricing in effect on the first day of the pertinent month. Under no event shall SalonTouch be obligated to refund to you the reasonable value of any unused credits previously purchased by you.
7.2. Termination for Cause
SalonTouch may terminate this Agreement, effective immediately upon notice to Customer, if Customer or an Affiliate is in material breach of this Agreement. The material breaches that may trigger the termination-related rights set forth in this section include, but are not limited to, nonpayment by Customer. In the event of a termination pursuant to this subsection, in addition to other amounts Customer may owe SalonTouch, Customer must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve Customer of Customer’s obligation to pay any fees payable to SalonTouch for the period prior to the effective date of termination.
Furthermore, SalonTouch may suspend or terminate the Services (or any portion thereof) at any time without notice if SalonTouch believes: (a) that any activity or use of Services in connection with Customer’s account violates this Agreement, the intellectual property rights of a third party, or applicable laws, or is otherwise disruptive or harmful to SalonTouch or any third party, or (b) that SalonTouch is required to do so by law.
7.3. Rights on Termination or Expiration
Upon termination or expiration of this Agreement: (a) all Order Forms will automatically terminate and be of no force or effect; (b) Customer will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, SalonTouch will have no obligation to maintain Customer’s Services account or to retain or forward any data to Customer or any third party, except as required by applicable law.
Upon request by Customer within thirty (30) days following termination of this Agreement, and provided that Customer has paid SalonTouch all amounts owed under this Agreement, SalonTouch will make Customer’s Data available to Customer through SalonTouch’s standard web services or any other method deemed appropriate by SalonTouch for a period of up to thirty (30) days after receipt of such notice. After that thirty (30) day period, SalonTouch will have no obligation to retain or provide Customer’s Data, except as required by applicable law. If, at any time during the Subscription Term, Customer requires SalonTouch’s assistance in retrieving Customer’s Data, additional fees will apply.
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8. CONFIDENTIALITY
Each Party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (d) to make Confidential Information available to authorized persons only on a “need-to-know” basis. Either Party may disclose Confidential Information on a need-to-know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law, by order of a court, or other governmental authority or regulation, or in relation to legal proceedings or claims between or involving the Parties and this Agreement.
Each Party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (d) to make Confidential Information available to authorized persons only on a “need-to-know” basis. Either Party may disclose Confidential Information on a need-to-know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law, by order of a court, or other governmental authority or regulation, or in relation to legal proceedings or claims between or involving the Parties and this Agreement.
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9. WARRANTIES, DISCLAIMERS, AND REMEDIES
9.1. Warranty of Functionality
SalonTouch warrants to Customer that during a Subscription Term: (a) the subscribed Service will perform materially in accordance with the functionality described in the Documentation applicable to such Service; and (b) such functionality will not be materially decreased. Customer’s sole and exclusive remedy for a breach of this warranty will be that SalonTouch will use commercially reasonable efforts to modify the applicable Services to achieve the proper functionality. If SalonTouch is unable to restore such functionality, Customer may terminate the Agreement by providing written notice to SalonTouch, and Customer will be entitled to receive a pro-rata refund of any pre-paid fees. SalonTouch will have no obligation with respect to a warranty claim under this section unless notified by Customer in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable law.
This warranty does not apply to any trial or beta services. Specifically, SalonTouch may in its sole discretion offer trial services or beta services from time to time at no charge. Any trial or beta services are provided “AS IS” with no warranties of any kind. SalonTouch may discontinue any trial or beta services at any time, with or without notice and without any further obligations to Customer. SalonTouch will have no liability for any harm or damages suffered by Customer or any third party in connection with any trial or beta services.
9.2. Virus-Related Warranty
SalonTouch warrants that the Services will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for: (i) any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer or its Users, and (ii) any Malicious Code contained in any Third-Party Applications.
9.3. Disclaimer
NOTWITHSTANDING ANY OTHER PROVISIONS IN THIS AGREEMENT, SALONTOUCH DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, CORRECT OR COMPLETE OR THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS; AND OR THAT THE OVERALL SYSTEM OUTSIDE OF SALONTOUCH’S OWNERSHIP AND/OR CONTROL THAT MAKES THE SERVICES AVAILABLE (THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED ABOVE IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SOFTWARE PROVIDER. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED.
9.4. Third-Party Products and Services
Although the Services may allow Customer to access or use Third-Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments, or other obligations with respect to Services hereunder. The availability of any Third-Party Offerings through the Services does not imply SalonTouch’s endorsement of or affiliation with the provider. SalonTouch does not control Third-Party Offerings and will have no liability to Customer or Affiliates in connection with any Third-Party Offerings. SalonTouch has no obligation to monitor or maintain Third-Party Offerings, and may disable or restrict access to any Third-Party Offerings at any time. By using or enabling any Third-Party Offering, Customer is expressly permitting SalonTouch to disclose Customer’s Data or other information to the extent necessary to utilize the Third-Party Offering. YOUR USE OF THIRD-PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD-PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY OFFERINGS).
9.5. Limitations of Liability
CUSTOMER AGREES THAT THE CONSIDERATION THAT SALONTOUCH IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY SALONTOUCH OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COST OF COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW).
EXCEPT WITH REGARD TO AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT (INCLUDING OVERDUE SUBSCRIPTION FEES AND ASSOCIATED COSTS AND EXPENSES SPECIFICALLY RECOVERABLE IN RELATION THERETO BY SALONTOUCH), THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE USE OR OTHER DEPLOYMENT OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF SIX (6) MONTHS IN SUBSCRIPTION FEES FOR THE SERVICES THAT IS THE SUBJECT OF THE CLAIM.
THE PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED FOR THE SERVICES TO CUSTOMER.
FINALLY, SALONTOUCH EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY SALONTOUCH. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
9.1. Warranty of Functionality
SalonTouch warrants to Customer that during a Subscription Term: (a) the subscribed Service will perform materially in accordance with the functionality described in the Documentation applicable to such Service; and (b) such functionality will not be materially decreased. Customer’s sole and exclusive remedy for a breach of this warranty will be that SalonTouch will use commercially reasonable efforts to modify the applicable Services to achieve the proper functionality. If SalonTouch is unable to restore such functionality, Customer may terminate the Agreement by providing written notice to SalonTouch, and Customer will be entitled to receive a pro-rata refund of any pre-paid fees. SalonTouch will have no obligation with respect to a warranty claim under this section unless notified by Customer in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable law.
This warranty does not apply to any trial or beta services. Specifically, SalonTouch may in its sole discretion offer trial services or beta services from time to time at no charge. Any trial or beta services are provided “AS IS” with no warranties of any kind. SalonTouch may discontinue any trial or beta services at any time, with or without notice and without any further obligations to Customer. SalonTouch will have no liability for any harm or damages suffered by Customer or any third party in connection with any trial or beta services.
9.2. Virus-Related Warranty
SalonTouch warrants that the Services will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for: (i) any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer or its Users, and (ii) any Malicious Code contained in any Third-Party Applications.
9.3. Disclaimer
NOTWITHSTANDING ANY OTHER PROVISIONS IN THIS AGREEMENT, SALONTOUCH DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, CORRECT OR COMPLETE OR THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS; AND OR THAT THE OVERALL SYSTEM OUTSIDE OF SALONTOUCH’S OWNERSHIP AND/OR CONTROL THAT MAKES THE SERVICES AVAILABLE (THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED ABOVE IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SOFTWARE PROVIDER. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED.
9.4. Third-Party Products and Services
Although the Services may allow Customer to access or use Third-Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments, or other obligations with respect to Services hereunder. The availability of any Third-Party Offerings through the Services does not imply SalonTouch’s endorsement of or affiliation with the provider. SalonTouch does not control Third-Party Offerings and will have no liability to Customer or Affiliates in connection with any Third-Party Offerings. SalonTouch has no obligation to monitor or maintain Third-Party Offerings, and may disable or restrict access to any Third-Party Offerings at any time. By using or enabling any Third-Party Offering, Customer is expressly permitting SalonTouch to disclose Customer’s Data or other information to the extent necessary to utilize the Third-Party Offering. YOUR USE OF THIRD-PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD-PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY OFFERINGS).
9.5. Limitations of Liability
CUSTOMER AGREES THAT THE CONSIDERATION THAT SALONTOUCH IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY SALONTOUCH OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COST OF COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW).
EXCEPT WITH REGARD TO AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT (INCLUDING OVERDUE SUBSCRIPTION FEES AND ASSOCIATED COSTS AND EXPENSES SPECIFICALLY RECOVERABLE IN RELATION THERETO BY SALONTOUCH), THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE USE OR OTHER DEPLOYMENT OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF SIX (6) MONTHS IN SUBSCRIPTION FEES FOR THE SERVICES THAT IS THE SUBJECT OF THE CLAIM.
THE PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED FOR THE SERVICES TO CUSTOMER.
FINALLY, SALONTOUCH EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY SALONTOUCH. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
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10. INDEMNIFICATION
10.1. SalonTouch’s Infringement Indemnity
SalonTouch shall, at its own expense and subject to the limitations set forth in this section, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Services, as used in accordance with the terms and conditions of this Agreement, infringes the copyrights, trade secrets, patents, or trademarks of such third party and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from these indemnification obligations are Claims to the extent arising from: (a) use of the Services in violation of this Agreement or applicable law; (b) use of the Services after SalonTouch notifies Customer to discontinue use because of an infringement claim; (c) modifications to the Services not made by SalonTouch; (d) Claims caused in whole or in part by the acts or omissions of third-party suppliers or vendors of any Services; and/or (e) use of the Services in combination with any software, application, or service not provided by SalonTouch. If a Claim is brought or threatened, SalonTouch shall, at its sole option and expense, use commercially reasonable efforts either: (a) to procure for Customer the right to continue using the Services without cost to Customer; (b) to modify or replace all or portions of the Services as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and provide to the Customer any pro-rata refund of the Subscription Fees pre-paid under the Agreement for the remaining terminated portion of the Term. The rights and remedies granted to Customer under this section state SalonTouch’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of any third party.
10.2. SalonTouch’s Customer Data Indemnity
SalonTouch shall, at its own expense and subject to the limitations set forth in this section, defend Customer from and against any Claims that arise out of or result directly from SalonTouch’s gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data and shall hold Customer harmless from and against liability for any Losses to the extent based upon such Claims. In such event SalonTouch shall, at its own expense and subject to the limitations set forth in this section and for up to an amount equal to twelve (12) months of then-current Subscription Fees payable by Customer for the Services hereunder, defend and hold Customer harmless from and against any Claims and liability for any Losses from the unauthorized access to confidential Customer Data. Provided that SalonTouch complies with this section, Customer shall be entitled as its sole and exclusive remedy for Claims under this section, to receive any indemnification rights and to terminate the Agreement and receive any pro-rata refund of the Subscription Fees pre-paid under the Agreement for the remaining terminated portion of the Term. The indemnity set forth in this section shall not apply to any Claim arising directly or indirectly from failures of networks, telecommunications, or equipment or other failures of third-party suppliers or vendors of any Services.
10.3. Customer’s Indemnity
Customer agrees, at its expense, to indemnify, defend, and hold harmless SalonTouch, its licensors and their respective directors, officers, employees, and agents from and against all demands, liabilities, losses, claims, and expenses, including, but not limited to, attorneys’ fees and disbursements, arising out of (i) Customer’s or any authorized or unauthorized third party’s use of Services via Customer’s Account, (ii) third-party claims, actions, or allegations of infringement based on information, data, or content Customer submitted in connection with any Services, (iii) any fraud or manipulation, or other breach of this Agreement by Customer, (iv) third-party claims, actions, or allegations brought against SalonTouch arising out of Customer’s use of any Services or the SalonTouch websites, or (v) for any claim whatsoever resulting from Customer or its affiliates’, employees’, contractors’, or agents’ breach of the Children’s Online Privacy Protection Act (COPPA), the Health Insurance Portability and Accountability Act (HIPAA), or any other state or federal medical privacy or electronic privacy laws. SalonTouch reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer.
10.4. Indemnification Procedures and Survival
In the event of a potential indemnity obligation under this section, the indemnified Party shall: (i) promptly notify the indemnifying Party in writing of such Claim; (ii) allow the indemnifying Party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying Party, cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this section are expressly conditioned upon the indemnified Party’s compliance with this section. The indemnification obligations contained in this section shall survive termination of this Agreement for the later of the conclusion of a Claim or one year.
10.1. SalonTouch’s Infringement Indemnity
SalonTouch shall, at its own expense and subject to the limitations set forth in this section, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Services, as used in accordance with the terms and conditions of this Agreement, infringes the copyrights, trade secrets, patents, or trademarks of such third party and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from these indemnification obligations are Claims to the extent arising from: (a) use of the Services in violation of this Agreement or applicable law; (b) use of the Services after SalonTouch notifies Customer to discontinue use because of an infringement claim; (c) modifications to the Services not made by SalonTouch; (d) Claims caused in whole or in part by the acts or omissions of third-party suppliers or vendors of any Services; and/or (e) use of the Services in combination with any software, application, or service not provided by SalonTouch. If a Claim is brought or threatened, SalonTouch shall, at its sole option and expense, use commercially reasonable efforts either: (a) to procure for Customer the right to continue using the Services without cost to Customer; (b) to modify or replace all or portions of the Services as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and provide to the Customer any pro-rata refund of the Subscription Fees pre-paid under the Agreement for the remaining terminated portion of the Term. The rights and remedies granted to Customer under this section state SalonTouch’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of any third party.
10.2. SalonTouch’s Customer Data Indemnity
SalonTouch shall, at its own expense and subject to the limitations set forth in this section, defend Customer from and against any Claims that arise out of or result directly from SalonTouch’s gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data and shall hold Customer harmless from and against liability for any Losses to the extent based upon such Claims. In such event SalonTouch shall, at its own expense and subject to the limitations set forth in this section and for up to an amount equal to twelve (12) months of then-current Subscription Fees payable by Customer for the Services hereunder, defend and hold Customer harmless from and against any Claims and liability for any Losses from the unauthorized access to confidential Customer Data. Provided that SalonTouch complies with this section, Customer shall be entitled as its sole and exclusive remedy for Claims under this section, to receive any indemnification rights and to terminate the Agreement and receive any pro-rata refund of the Subscription Fees pre-paid under the Agreement for the remaining terminated portion of the Term. The indemnity set forth in this section shall not apply to any Claim arising directly or indirectly from failures of networks, telecommunications, or equipment or other failures of third-party suppliers or vendors of any Services.
10.3. Customer’s Indemnity
Customer agrees, at its expense, to indemnify, defend, and hold harmless SalonTouch, its licensors and their respective directors, officers, employees, and agents from and against all demands, liabilities, losses, claims, and expenses, including, but not limited to, attorneys’ fees and disbursements, arising out of (i) Customer’s or any authorized or unauthorized third party’s use of Services via Customer’s Account, (ii) third-party claims, actions, or allegations of infringement based on information, data, or content Customer submitted in connection with any Services, (iii) any fraud or manipulation, or other breach of this Agreement by Customer, (iv) third-party claims, actions, or allegations brought against SalonTouch arising out of Customer’s use of any Services or the SalonTouch websites, or (v) for any claim whatsoever resulting from Customer or its affiliates’, employees’, contractors’, or agents’ breach of the Children’s Online Privacy Protection Act (COPPA), the Health Insurance Portability and Accountability Act (HIPAA), or any other state or federal medical privacy or electronic privacy laws. SalonTouch reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer.
10.4. Indemnification Procedures and Survival
In the event of a potential indemnity obligation under this section, the indemnified Party shall: (i) promptly notify the indemnifying Party in writing of such Claim; (ii) allow the indemnifying Party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying Party, cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this section are expressly conditioned upon the indemnified Party’s compliance with this section. The indemnification obligations contained in this section shall survive termination of this Agreement for the later of the conclusion of a Claim or one year.
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11. POLICY REGARDING E-MAILS, TEXT MESSAGES AND OTHER ELECTRONIC COMMUNICATIONS
SalonTouch prohibits the use of the Service in any manner associated with the transmission, distribution, or delivery of any unsolicited bulk e-mails, unsolicited commercial e-mail, unsolicited text messages, or any other unsolicited electronic communications of any sort (collectively “spam”). SalonTouch is in no way attempting to interpret any laws, rules, or regulations. The following information is provided merely as a courtesy, and it is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts, and campaigns prior to using the SalonTouch Sites or Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
SalonTouch reserves the right to reclaim any phone number from your account and to return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number, such that the phone number is unutilized or underutilized, as defined by any local or federal regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan. When reclaiming unutilized or underutilized phone numbers, we will notify you at least fourteen (14) days in advance, unless we are prevented from doing so by the relevant carrier regulatory agency or governmental organization. We also reserve the right to reclaim phone numbers with no notice to you if your account is suspended for failure to pay or for suspected fraud, as well as if your free trial account is unutilized for more than thirty (30) days. SalonTouch Is Customer of Record. You acknowledge that SalonTouch is the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, we have certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion.
E-mails, text messages, and any other type of electronic communications sent through or via the Service or Website:
SalonTouch may immediately terminate any Customer account that it reasonably believes, in its sole discretion, is transmitting or is otherwise connected with any communications that violate this policy. Failure to enforce this policy in every instance does not constitute any waiver of SalonTouch's right to enforce this policy in the event of future or additional violations. Violation of this policy may also result in civil, criminal, or administrative penalties against the sending Customer and those assisting the sender.
SalonTouch prohibits the use of the Service in any manner associated with the transmission, distribution, or delivery of any unsolicited bulk e-mails, unsolicited commercial e-mail, unsolicited text messages, or any other unsolicited electronic communications of any sort (collectively “spam”). SalonTouch is in no way attempting to interpret any laws, rules, or regulations. The following information is provided merely as a courtesy, and it is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts, and campaigns prior to using the SalonTouch Sites or Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
SalonTouch reserves the right to reclaim any phone number from your account and to return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number, such that the phone number is unutilized or underutilized, as defined by any local or federal regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan. When reclaiming unutilized or underutilized phone numbers, we will notify you at least fourteen (14) days in advance, unless we are prevented from doing so by the relevant carrier regulatory agency or governmental organization. We also reserve the right to reclaim phone numbers with no notice to you if your account is suspended for failure to pay or for suspected fraud, as well as if your free trial account is unutilized for more than thirty (30) days. SalonTouch Is Customer of Record. You acknowledge that SalonTouch is the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, we have certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion.
E-mails, text messages, and any other type of electronic communications sent through or via the Service or Website:
- must not use or contain invalid or forged headers;
- must not use or contain invalid or non-existent domain names;
- must not employ any technique to otherwise misrepresent, hide, or obscure any information in identifying the point of origin or the transmission path;
- must not use other means of deceptive addressing;
- must not use a third party's Internet domain name, or be relayed from or through a third party's equipment, without permission of the third party;
- must not contain false or misleading information in the subject line or otherwise contain false or misleading content;
- must comply with all applicable state, federal or international laws, regulations, and industry standards guidelines including those governing the sending of spam, the sending of deceptive commercial e-mails, the sending of commercial text messages, and the sending of other commercial electronic communications such as the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association;
- must comply with all applicable state, federal or international laws, regulations and industry standards and guidelines including, but not limited to, the CAN-SPAM Act (including all subsequent amendments), the Controlling the Assault of Non-Solicited Pornography, the Telephone Consumer Protection Act of 1991 "TCPA" (as subsequently amended), the California Consumer Privacy Act “CCPA”, the Do Not Call Registry;
- agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the SalonTouch Services by visiting the Federal Trade Commission, the Federal Communications Commission and the Do Not Call Registry;
- must be sent only to recipients who have expressly consented to receive such communications in writing or have opted-in on a mobile device. Opt-in words (single words only) include START, YES or UNSTOP;
- must include your name, contact information, physical address, and a valid “opt-out” link or include clear opt-out/unsubscribe information in your text messages. Opt-out words (single words only) include STOP, STOPALL, UNSBSCRIBE, CANCEL, END, or QUIT;
- must not promote or display obscene or sexually explicit materials, alcohol, tobacco, and any other adult materials or products;
- must agree to familiarize yourself with and abide by all applicable local, state, national, and international laws and regulations pertaining to your use of our Services;
- must comply with the SalonTouch Service Agreement;
- must comply with all opt-out requests received prior to the sending of the subject e-mail, text message, or electronic communication;
- must not use the Service in any manner that could damage, disable, overburden, or impair any aspect of any of the Service, or that could interfere with any other party's use and enjoyment of any part of the Service;
- acknowledge that the Services do not support the making of emergency calls (e.g., 911 in the United States);
- agree that any individuals requesting Do-Not-Call (“DNC”) status shall be immediately placed on your
DNC accounts list and you further agree that you will not initiate any further messages or broadcasts to any individuals after they request DNC status.
SalonTouch may immediately terminate any Customer account that it reasonably believes, in its sole discretion, is transmitting or is otherwise connected with any communications that violate this policy. Failure to enforce this policy in every instance does not constitute any waiver of SalonTouch's right to enforce this policy in the event of future or additional violations. Violation of this policy may also result in civil, criminal, or administrative penalties against the sending Customer and those assisting the sender.
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12. SERVICE LEVEL AGREEMENT
The SalonTouch Service Level Agreement appears at www.salontouchstudio.com/sla-policy and is expressly incorporated herein by reference as if set forth in full at this section of the Agreement.
The SalonTouch Service Level Agreement appears at www.salontouchstudio.com/sla-policy and is expressly incorporated herein by reference as if set forth in full at this section of the Agreement.
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13. PRIVACY POLICY
The SalonTouch Privacy Policy appears at www.salontouchstudio.com/privacy-policy and is expressly incorporated herein by reference as if set forth in full at this section of the Agreement.
The SalonTouch Privacy Policy appears at www.salontouchstudio.com/privacy-policy and is expressly incorporated herein by reference as if set forth in full at this section of the Agreement.
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14. OTHER PROVISIONS
14.1. Relationship of the Parties
This Agreement shall not be construed to create any employment relationship, partnership, joint venture, franchise, or agency relationship.
14.2. Binding Effect
This Agreement will be binding upon and inure to the benefit of the Parties, their legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement.
14.3. Joint Drafting of Agreement
This Agreement represents the combined efforts and input of both Parties hereto, and neither shall be considered the sole “draftsperson” for purposes of any rule of construction against such draftsperson.
14.4. Headings for Convenience Only
The headings of the paragraphs of this Agreement are for convenience only and shall not be deemed to control the meaning of any paragraph.
14.5. Assignment
Customer may not assign, delegate, or transfer this Agreement in whole or in part, without SalonTouch’s prior written consent. SalonTouch may assign, transfer, or sublicense any or all of SalonTouch’s rights or obligations under this Agreement without restriction.
14.6. Force Majeure
SalonTouch will not be liable for failure to perform any of its obligations hereunder if such failure is caused by an event outside its reasonable control, including, but not limited to, acts of God, terrorism, war, or natural disaster.
14.7. No Waiver
No delay or failure by SalonTouch to exercise any right hereunder and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights hereunder accruing to the benefit of SalonTouch. No consent to a breach of any express or implied term of this Agreement by SalonTouch will constitute consent to any prior or subsequent breach.
14.8. Severability
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
14.9. No Third-Party Beneficiaries
Except as expressly set forth herein, nothing in this Agreement is intended to confer, nor shall anything herein confer upon any person other than the Parties hereto and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
14.10. Governing Law and Forum
This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflict of laws rules. Any action at law, suit in equity, or other judicial proceeding concerning, relating to, or touching upon in any way this Agreement or the subject-matter hereof, shall be brought, if at all, only in a court of proper subject matter jurisdiction in Georgia. Both Parties acknowledge the right of the specified courts to assert personal jurisdiction in any such action over all Parties and waive and release now and forever any defense to said assertion of personal jurisdiction that might otherwise exist.
14.11. Entire Agreement
This Agreement, along with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), represents the entire understanding between the Parties hereto with respect to the subject matter set forth herein, and supersedes all negotiations, agreements, contracts, commitments, and understandings, whether verbal or written, between the Parties. No modifications, additions, or amendments to this Agreement will be effective unless made in writing as an addendum to this Agreement and signed by duly authorized representatives of both Parties. In the event this Agreement is translated, the English-language version will control. In the event of a conflict between an Order Form and this Agreement, the Order Form will control.
14.12. Notices
Any notices provided by SalonTouch under this Agreement may be delivered to Customer within the Services or to the e-mail address(es) SalonTouch has on file for Customer’s account. Customer hereby consents to receive notice from SalonTouch through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to SalonTouch under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to SalonTouch, Attn: Customer Care, 3070 Windward Plaza, STE F #308, Alpharetta, GA 30005, with a copy to SalonTouch, Attn: Legal Department, 3070 Windward Plaza, STE F #308, Alpharetta, GA 30005.
14.13. Non-Binding Dispute Resolution
Should any dispute occur between the Parties hereto that arises from or relates in any way to this Agreement, other than a dispute that in the actual and reasonable judgment of a Party involves the need for a temporary restraining order and/or a preliminary injunction, the Parties shall, in relation to said dispute and acting in good faith: (1) in the case of the complaining Party, give written notice of the complaint or dispute and, in the case of the responding party, respond in writing within ten (10) business days after its receipt of the complaining Party’s notice; (2) confer by phone within ten (10) business days of the complaining Party’s receipt of the responding Party’s written response; and (3) if requested thereafter by either Party, confer in person at a mutually agreed upon location. Upon completion of this process and/or the failure or refusal of the opposing Party to complete this pre-litigation process, each Party may avail itself of all remedies, including the filing of a lawsuit, allowed by the governing law and contract provisions.
14.14. Representations and Warranties
Each Party hereby represents and warrants that such Party’s execution and performance of this Agreement does not: (i) conflict with or result in a violation or breach of any contract or obligation to which such Party is a party; and/or (ii) result in a violation of any laws applicable to such Party. Each Party warrants that its services provided hereunder: (i) will not infringe any rights of third parties; (ii) will be performed by careful, efficient, and qualified workers, and in a professional and workmanlike manner and that the services will conform to the applicable requirements and specifications and to the standards applicable in the field or industry; and (iii) will be produced and supplied in compliance with all applicable federal, state, and local laws, orders, rules, and regulations.
14.15. Amendments and Modifications to Agreement & Services
SalonTouch may, in its sole discretion, from time to time update (e.g., modify or amend) the terms of this Agreement. Said modifications shall become effective immediately upon SalonTouch’s notification to Customer by sending of an e-mail to the Customer’s notification e-mail address or the posting by SalonTouch of a notice in the Customer’s account or by posting a notice on this site, but you acknowledge that it is your sole responsibility to review our Policies on a regular basis and to be aware of any such changes. The "Last Updated" legend at the top of this agreement indicates when it was last updated. Customer’s use of the Services after such notification shall indicate and constitute Customer’s acceptance of the modified terms. If Customer does not agree to the modifications, then, within five (5) days of the earlier of SalonTouch’s sending or posting of the notice, Customer must give notice of non-acceptance and Agreement termination via e-mail to [email protected] and must immediately cease use of the Services.
Notwithstanding the paragraph above, no increase to fees specified by amount in a given Order Form may take effect until the expiration of the then-current Subscription Term. Changes to fees not specified by amount in an Order Form may be affected in accordance with the paragraph immediately above.
Finally, SalonTouch reserves the right to suspend any Services: (a) during planned downtime as provided in any Service Level Agreement-related provisions; (b) in connection with a Force Majeure event; or (c) if SalonTouch believes any malicious software is being used in connection with Customer’s account. In addition, SalonTouch reserves the right to change, suspend, or discontinue any features, components, or functions of the Services at any time. SalonTouch has no obligation to update or enhance any Services or to produce or release new versions of any Services.
Except as noted above in this Section, no term of this Agreement may be amended, supplemented, or otherwise modified except by a written agreement signed by all Parties.
14.16. Authority
The person executing this Agreement on behalf of Customer represents and warrants that he or she has the legal authority to bind Customer.
14.17. Expenses
Each Party shall be solely responsible for its own costs and expenses in connection with the preparation and negotiation of this Agreement.
14.18. HIPAA
HIPAA imposes rules to protect certain personal health information or “PHI” as that term is defined under HIPAA. Customer acknowledges that the Services offered hereunder are not HIPAA-compliant and are not intended for use in any manner that would fall within the purview of HIPAA and its related laws and regulations. If Customer or any Affiliate is subject to HIPAA, prior to accessing or using the Services, Customer must notify SalonTouch and, at SalonTouch’s sole discretion, SalonTouch may either terminate services or provide a HIPAA-compliant Business Associate Agreement (“”). Customer is solely responsible for determining whether Customer or any Affiliates are subject to HIPAA. Customer may send notice and request a BAA by e-mailing [email protected].
14.19. Counterparts; Electronic Delivery
This Agreement, and any amendment hereto, waiver hereof, and/or any purchase of services or goods in relation hereto, may be signed in counterparts, each of which will constitute an original, and all of which together will constitute one and the same instrument. Any signature may be delivered by PDF or other electronic means, which will have the same effect as an original signature.
14.20. Survival
The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.2.3, 3, 4 (other than section 4.1), 5, 6, 7 (other than section 7.3), 8, 9.1, 9.5, 10, 14.
14.1. Relationship of the Parties
This Agreement shall not be construed to create any employment relationship, partnership, joint venture, franchise, or agency relationship.
14.2. Binding Effect
This Agreement will be binding upon and inure to the benefit of the Parties, their legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement.
14.3. Joint Drafting of Agreement
This Agreement represents the combined efforts and input of both Parties hereto, and neither shall be considered the sole “draftsperson” for purposes of any rule of construction against such draftsperson.
14.4. Headings for Convenience Only
The headings of the paragraphs of this Agreement are for convenience only and shall not be deemed to control the meaning of any paragraph.
14.5. Assignment
Customer may not assign, delegate, or transfer this Agreement in whole or in part, without SalonTouch’s prior written consent. SalonTouch may assign, transfer, or sublicense any or all of SalonTouch’s rights or obligations under this Agreement without restriction.
14.6. Force Majeure
SalonTouch will not be liable for failure to perform any of its obligations hereunder if such failure is caused by an event outside its reasonable control, including, but not limited to, acts of God, terrorism, war, or natural disaster.
14.7. No Waiver
No delay or failure by SalonTouch to exercise any right hereunder and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights hereunder accruing to the benefit of SalonTouch. No consent to a breach of any express or implied term of this Agreement by SalonTouch will constitute consent to any prior or subsequent breach.
14.8. Severability
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
14.9. No Third-Party Beneficiaries
Except as expressly set forth herein, nothing in this Agreement is intended to confer, nor shall anything herein confer upon any person other than the Parties hereto and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
14.10. Governing Law and Forum
This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflict of laws rules. Any action at law, suit in equity, or other judicial proceeding concerning, relating to, or touching upon in any way this Agreement or the subject-matter hereof, shall be brought, if at all, only in a court of proper subject matter jurisdiction in Georgia. Both Parties acknowledge the right of the specified courts to assert personal jurisdiction in any such action over all Parties and waive and release now and forever any defense to said assertion of personal jurisdiction that might otherwise exist.
14.11. Entire Agreement
This Agreement, along with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), represents the entire understanding between the Parties hereto with respect to the subject matter set forth herein, and supersedes all negotiations, agreements, contracts, commitments, and understandings, whether verbal or written, between the Parties. No modifications, additions, or amendments to this Agreement will be effective unless made in writing as an addendum to this Agreement and signed by duly authorized representatives of both Parties. In the event this Agreement is translated, the English-language version will control. In the event of a conflict between an Order Form and this Agreement, the Order Form will control.
14.12. Notices
Any notices provided by SalonTouch under this Agreement may be delivered to Customer within the Services or to the e-mail address(es) SalonTouch has on file for Customer’s account. Customer hereby consents to receive notice from SalonTouch through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to SalonTouch under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to SalonTouch, Attn: Customer Care, 3070 Windward Plaza, STE F #308, Alpharetta, GA 30005, with a copy to SalonTouch, Attn: Legal Department, 3070 Windward Plaza, STE F #308, Alpharetta, GA 30005.
14.13. Non-Binding Dispute Resolution
Should any dispute occur between the Parties hereto that arises from or relates in any way to this Agreement, other than a dispute that in the actual and reasonable judgment of a Party involves the need for a temporary restraining order and/or a preliminary injunction, the Parties shall, in relation to said dispute and acting in good faith: (1) in the case of the complaining Party, give written notice of the complaint or dispute and, in the case of the responding party, respond in writing within ten (10) business days after its receipt of the complaining Party’s notice; (2) confer by phone within ten (10) business days of the complaining Party’s receipt of the responding Party’s written response; and (3) if requested thereafter by either Party, confer in person at a mutually agreed upon location. Upon completion of this process and/or the failure or refusal of the opposing Party to complete this pre-litigation process, each Party may avail itself of all remedies, including the filing of a lawsuit, allowed by the governing law and contract provisions.
14.14. Representations and Warranties
Each Party hereby represents and warrants that such Party’s execution and performance of this Agreement does not: (i) conflict with or result in a violation or breach of any contract or obligation to which such Party is a party; and/or (ii) result in a violation of any laws applicable to such Party. Each Party warrants that its services provided hereunder: (i) will not infringe any rights of third parties; (ii) will be performed by careful, efficient, and qualified workers, and in a professional and workmanlike manner and that the services will conform to the applicable requirements and specifications and to the standards applicable in the field or industry; and (iii) will be produced and supplied in compliance with all applicable federal, state, and local laws, orders, rules, and regulations.
14.15. Amendments and Modifications to Agreement & Services
SalonTouch may, in its sole discretion, from time to time update (e.g., modify or amend) the terms of this Agreement. Said modifications shall become effective immediately upon SalonTouch’s notification to Customer by sending of an e-mail to the Customer’s notification e-mail address or the posting by SalonTouch of a notice in the Customer’s account or by posting a notice on this site, but you acknowledge that it is your sole responsibility to review our Policies on a regular basis and to be aware of any such changes. The "Last Updated" legend at the top of this agreement indicates when it was last updated. Customer’s use of the Services after such notification shall indicate and constitute Customer’s acceptance of the modified terms. If Customer does not agree to the modifications, then, within five (5) days of the earlier of SalonTouch’s sending or posting of the notice, Customer must give notice of non-acceptance and Agreement termination via e-mail to [email protected] and must immediately cease use of the Services.
Notwithstanding the paragraph above, no increase to fees specified by amount in a given Order Form may take effect until the expiration of the then-current Subscription Term. Changes to fees not specified by amount in an Order Form may be affected in accordance with the paragraph immediately above.
Finally, SalonTouch reserves the right to suspend any Services: (a) during planned downtime as provided in any Service Level Agreement-related provisions; (b) in connection with a Force Majeure event; or (c) if SalonTouch believes any malicious software is being used in connection with Customer’s account. In addition, SalonTouch reserves the right to change, suspend, or discontinue any features, components, or functions of the Services at any time. SalonTouch has no obligation to update or enhance any Services or to produce or release new versions of any Services.
Except as noted above in this Section, no term of this Agreement may be amended, supplemented, or otherwise modified except by a written agreement signed by all Parties.
14.16. Authority
The person executing this Agreement on behalf of Customer represents and warrants that he or she has the legal authority to bind Customer.
14.17. Expenses
Each Party shall be solely responsible for its own costs and expenses in connection with the preparation and negotiation of this Agreement.
14.18. HIPAA
HIPAA imposes rules to protect certain personal health information or “PHI” as that term is defined under HIPAA. Customer acknowledges that the Services offered hereunder are not HIPAA-compliant and are not intended for use in any manner that would fall within the purview of HIPAA and its related laws and regulations. If Customer or any Affiliate is subject to HIPAA, prior to accessing or using the Services, Customer must notify SalonTouch and, at SalonTouch’s sole discretion, SalonTouch may either terminate services or provide a HIPAA-compliant Business Associate Agreement (“”). Customer is solely responsible for determining whether Customer or any Affiliates are subject to HIPAA. Customer may send notice and request a BAA by e-mailing [email protected].
14.19. Counterparts; Electronic Delivery
This Agreement, and any amendment hereto, waiver hereof, and/or any purchase of services or goods in relation hereto, may be signed in counterparts, each of which will constitute an original, and all of which together will constitute one and the same instrument. Any signature may be delivered by PDF or other electronic means, which will have the same effect as an original signature.
14.20. Survival
The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.2.3, 3, 4 (other than section 4.1), 5, 6, 7 (other than section 7.3), 8, 9.1, 9.5, 10, 14.
