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TERMS OF SERVICE

Terms Of Service

SALONRUNNER SOFTWARE, LLC
SERVICE AGREEMENT

THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR 30-DAY FREE TRIAL OF THE SERVICES.

IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.

IMPORTANT – PLEASE READ CAREFULLY – THIS SERVICE AGREEMENT ( “AGREEMENT”) CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN SALONRUNNER SOFTWARE, LLC (“SALONRUNNER,” “WE,” “OUR,” OR “US”) AND YOU AND GOVERNS YOUR PURCHASE AND USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The effective date of this Agreement is the date which you accepted this Agreement (“Effective Date”).

  1. DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the subject entity.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are signed or electronically accepted by us from time to time. Order Forms shall be deemed incorporated herein by reference. Payment of your first month of service is an acceptable Order Form.

“Purchased Services” means Services that you or your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.

“Services” means the online, Web-based applications and platform provided by us via http://app.salonrunner.com and/or other designated websites as described in the User Guide, that are ordered by you as part of a 30-day free trial or under an Order Form, including associated offline components, but excluding Third Party Applications.

“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, which interoperate with the Services.

“User Guide” means the online user guide for the Services, accessible via MyRosy, as updated from time to time. You acknowledge that you have had the opportunity to review the User Guide during the 30-day free trial described in Section 2 (30-Day Free Trial) below.

“Users” means individuals who are authorized by you to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by you (or by us at your request). Users may include, but are not limited to your employees, consultants, contractors and agents; or third parties with whom you transact business.

  1. 30-DAY FREE TRIAL

We will make the Service available free of charge until the earlier of (a) the thirtieth day after your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by you.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR 30-DAY FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO OUR SERVICE, OR EXPORT SUCH DATA, BEFORE THE END OF THE 30-DAY TRIAL PERIOD.

NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE 30-DAY FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

Please review the User Guide during the trial period so that you become familiar with the features and functions of the Services before you make your purchase.

  1. PURCHASED SERVICES

3.1. Provision of Purchased Services. We shall make the Purchased Services available to you pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.

3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

  1. USE OF THE SERVICES

4.1 Our Responsibilities. We will: (i) provide basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately and (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we will give at least 8 hours prior notice via the Purchased Services. We will schedule, to the extent practicable, during off-peak hours from 10:00 p.m. to 3:00 a.m. Pacific time, Saturday through Monday), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or Internet service provider failures or delays.

4.2. Your Responsibilities. You shall (i) be responsible for your Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of your data and of the means by which you acquired your data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to any third party other than your Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) use the Services if your business requires the Services to be HIPPA compliant  (the Services are not HIPPA compliant).

  1. THIRD-PARTY PROVIDERS

5.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by you of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between you and any third-party provider, is solely between you and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.

5.2. Third-Party Applications and Your Data. If you install or enable Third-Party Applications for use with Services, you acknowledge that we may allow providers of those Third-Party Applications to access your data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of your data resulting from any such access by Third-Party Application providers. The Services will permit you to restrict such access by restricting your Users from installing or enabling such Third-Party Applications for use with the Services.

  1. FEES AND PAYMENT FOR PURCHASED SERVICES

6.1. User Fees. Your fees shall be all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased can be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

6.2. Invoicing and Payment. You must provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net thirty (30) days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information for the Services.

6.3. Late Payment Charges. If any payments are not received from you by the due date (except charges then under reasonable and good faith dispute), then at our discretion, (a) such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) we may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).

6.4. Charges Thirty or More Days Overdue. If any charge owing by you under this or any other agreement for Services is thirty (30) or more days overdue (except charges then under reasonable and good faith dispute), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.

6.5. Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ” Taxes”). You are responsible for paying all taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you.

  1. PROPRIETARY RIGHTS

7.1. Reservation of Rights. We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.

7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes or  (iv) reverse engineer the Services.

7.3. Ownership and use of your data. You exclusively own all rights, title and interest in and to all of your data. However, we may share your data with Third-Party Applications to provide the Services integrated with the SalonRunner platform.

7.4. Suggestions. We shall have a royalty-free, worldwide, transferable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you or your Users

7.5 Aggregated Data. We may use your data in an aggregated manner and provide this data to third parties.

7.6. Federal Government End Use Provisions. If you are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a Commercial Item as that term is defined at 48 C.F.R. §2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to you with only those rights as provided under the terms and conditions of these terms.

  1. WARRANTIES AND DISCLAIMERS

8.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Guide and (ii) the functionality of the Services will not be materially decreased during a subscription term. The foregoing warranties shall only apply to Purchased Services and do not apply to Services provided during any 30-day free trial.

8.2. Mutual Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement.

8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SYSTEM IS PROVIDED “AS IS”.  THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, FOR THE SYSTEM FURNISHED HEREUNDER.  SALONRUNNER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SALONRUNNER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SYSTEM WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE.

  1. INDEMNIFICATION

9.1. Indemnification by us. We shall defend you against any claim, demand, suit, or proceeding (” Claim”) made or brought against you by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorneys’ fees incurred by you in connection with any such Claim; provided that you (a) promptly give us written notice of the Claim; (b) give us sole control of the defense and settlement of the Claim (provided that we may not settle any Claim unless the settlement unconditionally releases you of all liability); and (c) provide to us reasonable assistance, at our expense.

9.2. Indemnification by you. You shall defend us against any Claim made or brought against us by a third party alleging that your data, or your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify us for any damages finally awarded against, and for reasonable attorneys’ fees incurred by us in connection with any such Claim; provided, that we (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at your expense.

9.3. Exclusive Remedy. This Section 9 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

  1. LIMITATION OF LIABILITY

10.1. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL SALONRUNNER OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA OR LOSS OF GOODWILL RESULTING FROM THE USE OR INABILITY TO USE THE SYSTEM OR OTHER GOODS OR SERVICES PROVIDED HEREUNDER, EVEN IF WE HAVE BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.  IN NO EVENT WILL OUR LIABILITY UNDER ANY CLAIM MADE BY YOU OR ANY THIRD PARTY EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE SIX MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.

  1. TERM AND TERMINATION

11.1. Term of Agreement. This Agreement commences on the date you accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If you elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period.

11.2. Term of Purchased User Subscriptions. User subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless we have given written notice of a price increase before the end of such prior term, in which case the price increase shall be effective upon renewal.

11.3. Termination for Cause. Either party may terminate this Agreement (i) if the other party breaches any term of this Agreement in any material respect and the breaching party fails to cure such breach within thirty (30) days after receiving written notice of the breach from the non-breaching party or(ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4. Refund or Payment upon Termination. We offer a 90-Day money back guarantee if you are not satisfied with your service. Upon any termination for cause by you, we will refund any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, you will be charged for any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

11.5. Return of Your Data. Upon your written request made within thirty (30) days after the effective date of termination of a Purchased Services subscription, we will make available to you for download a file of your data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, we shall have no obligation to maintain or provide any of your data and shall thereafter, delete all of your data in our systems or under our control.

11.6. Surviving Provisions. The provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13 and any other term which should reasonable survive of this Agreement shall survive and continue in full force and effect notwithstanding the termination or expiration of this Agreement.

  1. NOTICE

12.1. Notices to us should be sent to the following address:

SalonRunner Software, LLC

1020 Parkview Blvd

Lombard, IL 60148

12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, first class, registered or certified mail, postage prepaid (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Notices to you shall be addressed to the system administrator designated by you for your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by you.

12.3. Governing Law and Jurisdiction. The validity, terms, performance and enforcement of this Agreement will be governed and construed by its provisions and in accordance with the laws of the State of Delaware and the United States of America (without regard to conflicts of laws principles).  You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the State of Delaware for any action, suit or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby.  Each party irrevocably waives any objection, including any objection based upon the grounds of forum non-conveniens, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Agreement.  THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.

  1. GENERAL PROVISIONS

13.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

13.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

13.5. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the provision shall be modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remainder of this Agreement will be unaffected.  Each remaining term or provision of this Agreement will be valid and enforced to the fullest extent permitted by law.

13.7. Assignment. You may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of SalonRunner, which consent will not be unreasonably withheld.  Any attempted assignment or transfer in violation of this Section 13.7 will be void and of no force or effect.  The benefits and duties of this Agreement are assignable by us, and upon an assignment of the benefits and duties of this Agreement by us, we shall have no further liability or obligation under this Agreement.

13.8. Entire Agreement.  This Agreement, including all exhibits, addenda and Order Forms constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all contemporaneous and prior oral or written agreements, commitments, purchase orders, negotiations or understandings with respect to the matters provided for herein.

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