These Terms of Service ("Terms of Service") govern your use of the mobile and internet-based business tools and services offered by Booka, Inc. ("Booka," "we," "our," or "us") to you ("you," "your," or "Providers") at and through the website booka.com and any subdomain, our mobile app (the "App"), the website(s) we allow you to create, and the related services we provide (collectively, the "Booka Services"). By using the Booka Services, you agree that you have read, understood, and agree to be bound by these Terms of Service.
These Terms of Service also apply to individuals who create a Booka account, book appointments, make purchases, or otherwise transact through any booking page, widget, or checkout flow powered by Booka, whether that booking occurs through the Booka Marketplace or through a Provider's own standalone website or social media page (each, a "Client"). Clients agree to be bound by these Terms of Service, including, without limitation, the mandatory arbitration and class action waiver provisions in Section 23. If you are a Client and do not agree to these Terms of Service, do not create a Booka account, complete a booking, or complete a transaction.
The Booka Services are a platform that powers the businesses of Providers and facilitates interaction with Clients seeking the services of such Providers' businesses. Each business account must have an account owner and administrator who is the "Account Owner" of the Booka Services. Account Owners, Providers, and Clients are collectively or individually referred to herein as "Users." Any subscription or registration related to the Booka Services (each, a "Subscription") is subject to these Terms of Service. Your Subscription may only be used for the purpose of representing and enabling your business. You must be an authorized representative of the business you represent on the Booka Services. Personal, consumer, or family use of a Provider Subscription is not intended or permitted.
Booka is a booking and business-management platform and is not a party to any service agreement, appointment booking, or transaction between a Client and a Provider. Providers are independent service providers and are not employees, agents, joint venturers, or contractors of Booka. Booka does not employ, supervise, direct, control, license, or guarantee the quality, safety, performance, legality, or outcome of any service provided by any Provider to any Client.
THESE TERMS OF SERVICE SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE BOOKA SERVICES, WHETHER IN CONNECTION WITH A SUBSCRIPTION, A FREE TRIAL, OR AS A CLIENT, AND REQUIRE MOST DISPUTES BETWEEN YOU AND BOOKA TO BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION, UNLESS YOU ARE A CLIENT AND EXERCISE THE OPT-OUT RIGHTS IN SECTION 23(h) BELOW. EVEN IF YOU OPT OUT, BY ACCEPTING THESE TERMS OF SERVICE AND UTILIZING THE BOOKA SERVICES, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN ANY CLASS ACTION, CLASS-WIDE ARBITRATION, OR REPRESENTATIVE PROCEEDING AGAINST BOOKA.
BY ACCESSING OR USING THE BOOKA SERVICES, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU (1) ARE 18 YEARS OF AGE OR OLDER, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE, DO NOT ACCESS AND/OR USE THE BOOKA SERVICES. PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
IN PARTICULAR, PROVIDERS SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE MUNICIPALITIES, CITIES, COUNTIES, STATES, AND COUNTRIES BEFORE PROVIDING SERVICES. SOME STATES HAVE LAWS THAT REGULATE COSMETOLOGY AND COSMETOLOGY-RELATED SERVICES, IN ADDITION TO PAYMENT AND PAYMENT-PROCESSING COLLECTIONS PRACTICES. IN MANY STATES, BEAUTY SERVICES PROVIDERS MUST BE LICENSED BEFORE THEY ARE ABLE TO COMMERCIALLY PROVIDE BEAUTY SERVICES. PENALTIES MAY INCLUDE FINES OR OTHER ENFORCEMENT.
BOOKA SHALL HAVE NO LIABILITY TO ANY CLIENT FOR ANY ACTS, OMISSIONS, ERRORS, REPRESENTATIONS, WARRANTIES, BREACHES, OR NEGLIGENCE OF ANY PROVIDER, OR FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. ANY DISPUTE BETWEEN A CLIENT AND A PROVIDER SHALL BE RESOLVED DIRECTLY BETWEEN THE CLIENT AND THE APPLICABLE PROVIDER WITHOUT INVOLVEMENT OF BOOKA.
1. CHANGES TO TERMS OF SERVICE
We reserve the right, in our sole discretion, to change, modify, add, or remove portions of these Terms of Service at any time. Your use or continued use of the Booka Services after we have updated these Terms of Service constitutes your understanding and acceptance of the updated Terms of Service. We will provide you with notice of any material changes by updating the "Last Updated" date. We encourage you to review these Terms of Service periodically.
2. PRIVACY
Our Privacy Policy describes how we collect, use, and disclose personal information from you in the provision of the Booka Services. By accepting these Terms of Service or by using the Booka Services, you agree to our Privacy Policy.
Because Booka offers a single, unified Client account (the "Booka Profile") that a Client uses across every Provider on the Booka Services, whether the Client is booked through Booka Marketplace or through a Provider's own standalone website, Booka acts as a "controller" or "business" with respect to certain Client account-level information (such as the Client's name, contact information, login credentials, and consolidated booking history across Providers), as such terms are defined under applicable privacy or data protection laws, including the California Consumer Privacy Act and similar laws adopted in other states.
With respect to business-specific records a Provider creates or collects about a Client (such as service notes, intake forms, photos, and appointment-specific details), Providers act as the "controller" or "business," and Booka acts as a "processor" or "service provider" on the Provider's behalf. Booka will process such information in accordance with our Data Processing Addendum, which is incorporated into these Terms of Service by reference.
Clients acknowledge that Booka may collect, use, and disclose their personal information: (a) to operate the Client's unified Booka Profile and consolidated bookings page across all Providers the Client has booked with; (b) as a service provider on behalf of the applicable Provider; and (c) for Booka's own operational, analytics, and product improvement purposes, in each case in accordance with Booka's Privacy Policy available at booka.com/privacy-policy.
3. PAYMENTS TERMS
Our Payments Terms describe our practices regarding payments, disbursements, refunds, and other matters related to financial transactions conducted using the Booka Services. By accepting these Terms of Service or by using the Booka Services, you agree to be bound by our Payments Terms.
4. REFERRAL PROGRAM POLICY
Our Referral Program Policy describes the terms and conditions governing any Booka referral program we may offer from time to time. By accepting these Terms of Service or by participating in a Booka referral program, you agree to be bound by the applicable Referral Program Policy.
5. BOOKA ACCOUNT
5.1 Provider Accounts. Your Booka account ("Account") gives you access to the Booka Services that we may establish and maintain from time to time in our sole discretion. You confirm upon creating an Account that you are 18 years of age or older and either a legal resident of the United States, a United States citizen, or a business entity authorized to do business in the states in which you operate. You may only use the Booka Services and your Account for business purposes within the fifty states of the United States of America, its territories, and the District of Columbia.
When creating your Account and/or using the Booka Services, you must provide accurate, complete, and appropriate information. You acknowledge and agree that you will not intentionally omit or misrepresent any facts or material information, and that if any such omission or misrepresentation occurs, you will promptly rectify it. You consent that Booka has the right to verify any information submitted by you. Booka has the right to suspend or terminate any User that provides incomplete, inaccurate, or untrue information.
You understand and agree that you are solely responsible for compliance with any and all applicable laws, rules, and regulations that may apply to your use of the Booka Services and your Account, including any products and services you provide or make available through Booka. You represent and warrant that you are, or if you are a salon, merchant, or other business entity, that all of your employees, independent contractors, or agents who are providing services to Clients are each licensed professionals in full compliance with the laws and regulations of your particular state, and that all business information provided to describe you or them is correct. You certify that you are duly licensed to provide services to Clients "in-home" or outside of your place of business should such services be advertised as such.
You are solely responsible for the activity that occurs on your Account and for keeping your Account password secure. We suggest using safe practices such as a strong password, multi-factor authentication where available, not sharing your login information with others, and only logging in on your own personal or business devices. You must notify Booka immediately at support@booka.com of any unauthorized use of your Account. You may never use another User's account without permission.
If you are an Account Owner, Booka will treat all data associated with the Account that is used by you and the other Providers provisioned to access your Account as owned by you. If you are a Provider using the Booka Services under the Account of an Account Owner, you acknowledge and agree that Booka will treat all Account data as solely and exclusively owned by the Account Owner and not you. Booka has no responsibility, and undertakes no liability, with respect to internal business disputes between Providers on its platform, and reserves the right to rely on the Account Owner designation unless required by a court of competent jurisdiction.
5.2 Client Accounts and Cross-Provider Booking History. When a Client creates a Booka Profile, that Profile and the Client's login are shared across every Provider on the Booka Services. Bookings made through the Booka Marketplace and bookings made directly through a Provider's own standalone website or booking widget both appear together on the Client's bookings page at Booka.com, because both are powered by the same underlying Booka Services.
A Client's Booka Profile does not give any Provider access to that Client's booking history, contact preferences, or account activity with any other Provider. Each Provider can see only the booking history and account information the Client has generated with that specific Provider.
A Provider may only send marketing, promotional, or outreach communications to Clients who have an existing booking relationship with that Provider (that is, a Client who has booked, or attempted to book, an appointment with that specific Provider). Providers may not use the Booka Services to identify, contact, solicit, or market to Clients solely because those Clients have a Booka Profile or have booked with a different Provider on the Booka Services. Booka reserves the right to monitor for and restrict any attempt to circumvent this limitation.
6. BOOKA PROGRAMS AND BETA SERVICES
Booka may run certain promotions, programs, opportunities, sweepstakes, contests, and giveaways ("Booka Programs"). Booka Programs are subject to these Terms of Service and any additional terms presented to you. Booka reserves the right, at any time and in its sole discretion, to modify, change, add to, take away from, supplement, or terminate any Booka Program, including changing its name, offers, fees, or eligibility requirements. Booka retains sole discretion to determine whether the requirements of a Booka Program have been met.
From time to time, at Booka's sole discretion, Booka may invite you to try Beta Services (new features or functionality) at no charge. You may accept or decline any such trial in your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes only, are not supported, and may be subject to additional terms. BETA SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND. Booka may discontinue Beta Services at any time and may never make them generally available. Booka will have no liability for any harm arising out of or in connection with a Beta Service.
7. RESTRICTIONS
Our Acceptable Use Policy describes acceptable use of the Booka Services and any Account, including prohibited practices in the creation of, access to, and use of the Booka Services. This may include, but is not limited to, engaging in conduct that harasses or intimidates others, offering products containing CBD, THC, or ketamine, and selling services that include sex or adult content. By accepting these Terms of Service or by using the Booka Services, you agree to be bound by our Acceptable Use Policy.
You further agree that (i) enforcement of the Acceptable Use Policy is solely at Booka's discretion, and failure to enforce it does not waive our right to enforce it in other instances; (ii) each Provider is responsible for its Clients' compliance with the Acceptable Use Policy, and each Account Owner is responsible for its Providers' compliance; (iii) if a Provider or any Client of a Provider violates the Acceptable Use Policy, Booka may suspend that Provider's or Client's access to the Booka Services or relevant Account; and (iv) if an Account Owner or any Provider on whose behalf the Account Owner purchased the Booka Services violates the Acceptable Use Policy, Booka may suspend the Account Owner's or related Provider's access to the Booka Services or relevant Account.
Booka reserves the right to remove or reclaim any Accounts, services and products you offer, or content that violates the Acceptable Use Policy, as determined in Booka's sole discretion.
HIPAA
If you are a covered entity subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and use or plan to use the Booka Services to create, receive, maintain, or transmit Protected Health Information as defined under HIPAA ("PHI"), you must (i) request and sign a Business Associate Agreement ("BAA") with Booka, (ii) subscribe to and use the applicable Booka Services configured for HIPAA, (iii) comply with any privacy and security configurations or documentation Booka requests, and (iv) comply with all Booka policies regarding HIPAA's privacy and security rules and PHI. Unless and until you have completed these steps, you shall not use the Booka Services for any health-related purpose, nor may you enter, upload, disclose, or provide any PHI or HIPAA-related data to Booka, including its third-party vendors and service providers. You are solely responsible for determining whether you are subject to HIPAA and for evaluating the suitability of the Booka Services for your business purposes. Unless you have entered into a BAA with Booka, Booka shall have no liability under this Agreement in connection with PHI or HIPAA-related data, notwithstanding anything in this Agreement or in HIPAA.
Consumer Health Data
Certain states restrict collecting, sharing, or selling consumer health data without the individual's affirmative opt-in consent. Consumer health data generally means personal information linked or reasonably linkable to a consumer that identifies the consumer's past, present, or future physical or mental health status, and can include information about a Client's allergies, skin or scalp conditions, pregnancy status, or topical medications, as well as biometric data and inferences derived from purchases of non-health products or services.
You agree that if you are providing services in a state with a consumer health data law, you shall not collect, share, or sell consumer health data through the Booka website, Services, or App unless you have subscribed to and use the applicable Booka Services configured for HIPAA, have completed a BAA with Booka, and have instituted the requisite disclosure and opt-in consent mechanisms, cybersecurity and privacy practices, and any other requirements of your jurisdiction's laws. You also agree that you will not condition services on a Client's agreement to provide consumer health data to you.
You are solely responsible for determining whether information constitutes consumer health data in the state or territory where you provide services, and for complying with all applicable laws. Booka shall have no liability for consumer health data collected, shared, or sold in contravention of this Section.
8. FEES AND PAYMENTS
Fees for the Subscription ("Subscription Fees") and fees applicable to each transaction with Clients processed using the Booka Services ("Payment Processing Fees") are set forth online (on our Site, in the App, or otherwise in your Account) and/or in a separate Subscription agreement between you and Booka. Subscription Fees and Payment Processing Fees are collectively referred to as "Fees." You agree to (i) pay Booka the Subscription Fees and any other applicable fees, and (ii) allow Booka to retain the applicable Payment Processing Fees. Unless otherwise stated, Subscription Fees are collected in advance of each billing period. All Fees paid to Booka are non-refundable and non-transferable, except as explicitly provided in these Terms of Service.
By providing your credit card or other accepted payment method information ("Payment Method") for the Booka Services, you authorize Booka to charge the Payment Method for all applicable Subscription Fees when due and any other charges you incur in connection with your use of the Booka Services. You further authorize Booka to confirm that the Payment Method is in good standing with a financial institution for the term of your use of the Booka Services, and to obtain credit reports or run other background inquiries to assess a Provider's eligibility to continue using the Booka Services. All balances, fees, charges, and payments are denominated in USD. You are responsible for paying and remitting to the applicable tax authority any sales, use, or other similar taxes (including VAT, if applicable) related to (i) your purchase of the Booka Services, and (ii) services provided to Clients.
Reserves
Booka is not a bank or a money transmitter. Booka may, in our sole discretion, hold reserves for all or a portion of the charges processed by us. We reserve the right to impose a Reserve on a Provider's Account if, for example, we determine the risk of loss to Booka or otherwise associated with your Account is higher than reasonably normal, including if your activities increase risk of loss, you have violated these Terms of Service, or your Account has an elevated number of disputes. If we impose a Reserve, we will establish its terms and provide notice of the amount, timing, and conditions of release. Booka reserves the right to change or condition Reserve terms based on our continuous risk assessment.
Billing Cycle
Your Subscription commences on the date you sign up or on the date following the end of your free trial period. Unless otherwise stated, each Subscription runs on a one-month cycle ("Subscription Period") and automatically renews monthly until you cancel your Subscription or delete your Account, unless we have earlier terminated your Account. You will be billed on the first date of your Subscription (after your free trial, if applicable) and each monthly anniversary thereafter. If your Subscription begins on a date not present in every billing cycle (e.g., the 31st), you will be billed on the last day of the month. Booka may change the timing of its billing and reserves the right to modify the billing schedule. The amount billed each month may vary due to promotional offers and/or changes to your Subscription plan, and you authorize Booka to bill you as necessary.
Changes to Fees
Booka reserves the right to adjust Fees at any time and for any reason upon fourteen (14) days' prior notice. Unless otherwise stated, any Fee change will be reflected on the next billing cycle after the change takes effect. To continue using the Booka Services, you must agree to any Fee change. If you do not agree, you must cancel your Subscription or request Account deletion.
Trials
Booka may offer trial memberships for varying lengths, which may include free or discounted access during such trial periods. Booka reserves the right to end trial memberships at any time and for any reason. After the trial period, your membership will automatically convert to a regular monthly Subscription at the then-applicable Fees unless cancelled prior to the end of your trial period.
Subscription Cancellation or Account Deletion
You may cancel your Subscription or delete your Account at any time by following the appropriate procedures within the Booka Services or by notifying support@booka.com. Cancellation of your Subscription means you will no longer have access to your Account or Account data, and we will cease billing you on your next billing cycle. If you cancel your Subscription, you may reinstate your Account by contacting support@booka.com. Deletion of your Account means we will delete all of your Account data, except as required by applicable law, and we will cease billing you on your next billing cycle. You may not reinstate your Account after an Account deletion request, as we will no longer have access to your Account data.
You must cancel your Subscription or delete your Account prior to your next billing cycle to avoid charges for the following billing cycle. All Subscription Fees are non-refundable, and you acknowledge you are ineligible for a pro-rated refund of any amount paid for the then-current monthly subscription cycle in which you request cancellation or deletion. For questions related to your billing cycle, log onto your Account or contact support@booka.com.
9. PROPRIETARY RIGHTS
Except for any User Content (as defined in Section 11 below), as between you and us, we or our licensors, as applicable, own solely and exclusively all rights, title, and interest in and to the Booka Services, all content thereon (including text, photographs, graphics, audio, visual, and audiovisual content), code, data, and materials, the look and feel, design and organization of the Booka Services, and the compilation of content, code, data, and materials, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights, and other intellectual property and proprietary rights therein. Your use of the Booka Services does not grant you ownership of any content, code, data, or materials you may access, nor does it transfer to you or any third party any rights, title, or interest in Booka's or its licensors' intellectual property.
10. LIMITED LICENSE TO USE THE BOOKA SERVICES
Subject to these Terms of Service, Booka grants you a revocable, non-transferable, non-sublicensable, non-exclusive license to use the Booka Services, including installation and use of an object code copy of the App on mobile devices owned or leased solely by you, in accordance with these Terms of Service. You shall not (i) sublicense, sell, rent, lease (including to provide time sharing, service bureau, or similar services to any third party), loan, resell, transfer, assign, or distribute the Booka Services; (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Booka Services; (iii) access the Booka Services to build a similar or competitive service; (iv) imitate any part of the Booka Services, including but not limited to its text, photographs, graphics, audio, visual, settings, controls, functionality, code, data, mechanisms, design, interactions, or systems; (v) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Booka Services; (vi) delete trademark, copyright, or other proprietary rights notices on the Booka Services; or (vii) copy, reproduce, distribute, republish, download, display, post, or transmit the Booka Services in any form or by any means, except as expressly stated herein.
The foregoing limited license grant is not a sale of the Booka Services or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the Booka Services. Any future release, update, or addition to functionality of the Booka Services shall be subject to these Terms of Service.
You agree that any use of the Booka Services other than on your own behalf as a Provider shall be subject to immediate termination of your Account. If you breach any of the foregoing provisions, or are found complicit in enabling another to do so, Booka is entitled to seek monetary damages, injunctive relief, and other remedies from you.
11. LICENSE TO USER CONTENT
You grant Booka a non-exclusive, transferable, irrevocable, perpetual, sub-licensable, royalty-free, worldwide license to use, without compensation to you, any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, links, and other content or materials that you display, post, submit, or make available on or through (i) the Booka Services (including on the website(s) you create) or (ii) any online or public platform, including social media, that tags Booka or otherwise identifies Booka (collectively, "User Content"), for our lawful business purposes, including (a) to provide the Booka Services; (b) in connection with commercial or sponsored content displayed, promoted, or enhanced by us or our third-party partners, including in paid advertisements and on our websites or landing pages; and (c) in connection with Booka's social media accounts, including reposting your social media posts that tag or identify Booka.
You represent and warrant that you either own or have permission to use all User Content (including your personal information and the personal information of others) and that such content does not infringe any third-party intellectual property rights. You further represent and warrant that you will not provide, upload, or transmit any protected health information (PHI) to the Booka Services unless permitted under Section 7 above, and that you will not upload sensitive personal information or credit card information anywhere in the Booka Services, including in "notes" fields. We may, but have no obligation to, monitor, edit, or remove User Content that we determine violates any party's intellectual property rights or these Terms of Service. You are solely responsible for any User Content you display, post, or submit and its legality and accuracy. We take no responsibility and assume no liability for any User Content posted by you or any third party.
If you send certain submissions in response to a request from us (such as surveys or contest entries), or send creative ideas, suggestions, feedback, proposals, plans, or other materials, whether online, by email, by postal mail, via social media, or otherwise (collectively, "Comments"), you grant us an irrevocable, perpetual, royalty-free, transferable, sub-licensable right and license to use, distribute, and exploit such Comments, and agree that we may edit, copy, publish, distribute, translate, and otherwise use such Comments in any medium, at any time, without restriction. We are under no obligation to (i) maintain any Comments in confidence, (ii) pay compensation for any Comments, or (iii) respond to any Comments.
You may be exposed to non-public information about Booka or its products, services, and ideas (collectively, "Confidential Information"). You shall maintain the confidentiality of all Confidential Information disclosed to you in connection with the Services, and shall refrain from disclosing or using it for any purpose other than as strictly required to use the Services and to provide confidential feedback to Booka.
12. COMMUNICATIONS
By using the Booka Services, or where express consent as required by applicable law has been given, you expressly consent and agree to accept and receive communications, including via email, text message (e.g., SMS or MMS message, WhatsApp, iMessage), calls, and push notifications (collectively, "Communications") from us to the phone number you provided. These Terms and any applicable Booka SMS Terms govern the provision, receipt, and delivery of text messages by or on behalf of Booka. By consenting, you understand you may receive Communications generated by automatic telephone dialing systems and/or delivering prerecorded messages sent by or on behalf of Booka, including operational and transactional Communications concerning your Account, use of the Booka Services, and appointments; Communications with updates concerning new and existing features; and promotional Communications, including about special events, contests, sweepstakes, offers, or surveys run by us or our third-party partners, and news concerning Booka. Standard rates and text messaging charges may apply. You are not required to consent to receive promotional text messages as a condition of using the Booka Services. You may opt out of promotional or marketing Communications at any time by contacting us or following the instructions in the message. You may not opt out of service-specific Communications if you wish to continue accessing the Booka Services.
Client Communications From Providers. Consistent with Section 5.2 above, a Client's consent to receive marketing or promotional Communications from a Provider extends only to Providers with whom that Client has an existing booking relationship. A Client's Booka Profile does not constitute consent to receive Communications from any Provider the Client has not booked with, regardless of whether that Provider is on the Booka Services.
13. REPRESENTATIONS AND WARRANTIES
You represent and warrant that you are 18 years of age or older and have the legal right and capacity to enter into these Terms of Service in your jurisdiction. You represent and warrant that you will use the Booka Services solely in compliance with all applicable laws and regulations, including without limitation the licensing requirements in your jurisdiction for providing cosmetology services or other regulated or licensed products or services, and surcharge and credit card network requirements in your jurisdiction.
You are solely responsible for your conduct and for any User Content you display, post, submit, or make available on or through the Booka Services. You represent and warrant that (i) you own or have all rights, authorizations, or consents required to use all User Content displayed, posted, or submitted by you, as well as all content (such as client lists) that you request Booka transfer to your Account, or otherwise have the right to grant the rights and licenses set forth in these Terms of Service; (ii) the display, posting, submission, and use of your User Content, and any request that Booka transfer content to your Account, does not violate, misappropriate, or infringe on the rights of any third party, including privacy rights, publicity rights, copyrights, trademark, and/or other intellectual property rights; and (iii) you agree to pay all royalties, fees, and other monies owed by reason of User Content you display, post, or submit, or content you request Booka transfer to your Account.
Without limiting any remedies available under law, Booka will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material submitted through your Account, and will respond appropriately, following the guidelines of the Online Copyright Infringement Liability Limitation Act and other applicable intellectual property laws. Booka reserves the right to remove, hide, change, or reclaim any Accounts, services and products you offer, or content that violates the foregoing, as determined in Booka's sole discretion.
You represent and warrant that you are and shall remain, for so long as you access or use the Booka Services or any Account, in compliance with (i) these Terms of Service; (ii) all laws and regulations applicable to the transmission of any Communication to any individual, such as a Client, including without limitation the Telephone Consumer Protection Act (TCPA) and its implementing regulations, the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM) and its implementing regulations, and all related federal and state laws, rules, and regulations (collectively, "Communications Laws"); and (iii) industry guidelines and third-party policies applicable to the transmission of Communications, including wireless carrier guidelines and policies (collectively, "Industry Guidelines").
If you provide us with the names or contact information of your Clients, including email addresses or phone numbers, and instruct us to transmit Communications to your Clients on your behalf, you represent and warrant that you have, in compliance with Communications Laws and Industry Guidelines, provided all required notices to and obtained all required consents, permissions, or opt-ins from such Clients, and that any such Communications are limited to Clients with whom you have an existing booking relationship as described in Section 5.2.
If you enable any automated or AI-assisted communication feature made available through the Booka Services (such as automated booking confirmations, reminders, or AI-assisted messaging), you additionally represent and warrant that (a) you have implemented all legally required disclosures to Clients regarding the use of automated systems, AI, call recording, and SMS communications, including any disclosure required at the outset of a call or message indicating that the Client may be interacting with an automated or AI system, and that the interaction may be recorded; (b) you have obtained all consents required under applicable law before such a feature sends any Communication to a Client; (c) you will not use any such feature in a manner that violates applicable Communications Laws or Industry Guidelines; and (d) you have reviewed and understood Booka's documentation regarding any such feature and the compliance obligations associated with it.
14. APP STORE PROVIDER TERMS
To use any downloadable apps developed by us and provided to you directly or on our behalf, including all iOS apps bearing the "Booka" logo and the Booka Android app, you must have a compatible mobile device. We do not warrant that the App will be compatible with your mobile device. You acknowledge that we may from time to time issue upgraded versions of the App and may automatically electronically upgrade the version you are using, but we have no obligation to do so. You consent to such automatic upgrading and agree these Terms of Service apply to all upgrades. Standard carrier data charges may apply.
Apple Inc., Alphabet Inc., or Microsoft Corporation will be a third-party beneficiary to these Terms of Service if you access the Booka Services using applications developed for Apple iOS, Android, or Microsoft Windows-powered mobile devices, respectively. These third-party beneficiaries are not parties to this agreement and are not responsible for the provision or support of the Booka Services in any manner. Your access to the Booka Services using mobile devices is subject to the applicable third-party beneficiary's terms of service.
15. THIRD-PARTY APPLICATIONS, SERVICES, AND LINKS
We utilize certain third-party applications and services to power portions of the Booka Services or to permit you to access the Booka Services. Booka does not sponsor or endorse those third-party applications and services and has no obligation to support or maintain them, and Booka expressly disclaims any representations and warranties with respect to them. Booka does not monitor such third-party applications and services and has no control over or input into them. You acknowledge and agree that we provide access to such third-party applications and services on an "as is" and "as available" basis, without warranties, representations, or conditions of any kind and without endorsement. We shall have no liability arising from or relating to your use of third-party applications and services.
Your use of the Booka Services is conditioned upon your acceptance and compliance with the terms and conditions applicable to such third-party applications and services, including without limitation:
Stripe, to allow you to process credit card transactions with Clients. You must comply with their Connected Account Agreement (https://stripe.com/legal/connect-account).
[MESSAGING/SMS PROVIDER — name and link to their terms and acceptable use policy once selected], to allow you to communicate with Clients via SMS messages.
Certain content available on the Booka Services may include materials from third parties, including third-party links that may direct you to third-party websites not affiliated with Booka. You acknowledge that Booka is not responsible for examining or evaluating the content or accuracy of such third-party websites, and Booka does not provide any warranties or have any liability for any third-party websites or materials. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
Buy Now Pay Later
If the Booka Services offer Buy Now Pay Later ("BNPL") functionality, such Services are supported and managed by third-party BNPL partners, and if you choose to enable such Services, you are contracting with the applicable BNPL partner, and eligibility determinations are governed by that partner's terms of service, presented to you during signup. Booka is not a party to any agreement between you and a BNPL partner and expressly disclaims all liability with respect to such agreements. Booka reserves the right to prohibit or restrict your ability to make transactions using BNPL Services at any time for any reason, without notice, or to request additional information before you can use or continue to use BNPL Services.
16. GIFT CARDS
If you use the Booka Services to offer and sell gift cards to your Clients, you (and not Booka) are the issuer and administrator of your gift cards. You are solely responsible for compliance with federal, state, and local laws that apply to your gift cards, including notice and disclosure requirements, expiration dates and fees, refunds, cash back, and unclaimed property or escheat requirements (including tracking, reporting, and remittance of unclaimed property balances in all applicable states), and customer service for your Clients and gift card holders.
Gift cards sold by you are redeemable only from you for your services and goods. Booka does not assess a fee, or impose any limitations, on the redemption of a gift card to purchase services or goods from you. Booka is not responsible for any lost or stolen gift cards. All gift cards and the funds associated with them are your sole property. Any liability for the use or misuse of your gift cards, and any third-party claims arising from or relating to them, are your sole responsibility.
17. ARTIFICIAL INTELLIGENCE AND AUTOMATED FEATURES
Certain features of the Booka Services may use artificial intelligence tools and other technology (the "Generative Tools") to generate text, audio, video, scheduling suggestions, or other content ("Outputs") in response to prompts and other inputs you submit to the Services ("Inputs"). Both Inputs and Outputs are considered User Content under these Terms of Service, and as between you and Booka, you own all right, title, and interest in and to any Inputs and Outputs, to the extent protectable under applicable law. The Generative Tools may include artificial intelligence and other tools and technologies provided by third parties, and you acknowledge that your use of the Generative Tools may involve access to your Inputs and Outputs by Booka and/or such third parties. You understand that Outputs you generate may not be unique, and it is possible that the Generative Tools may generate the same or similar Outputs for other users with similar Inputs. You acknowledge that use of the Generative Tools may affect your ability to obtain or enforce intellectual property rights in the Outputs.
Although we strive to improve the Services and the quality and accuracy of Outputs, you acknowledge that artificial intelligence and machine learning technologies are rapidly evolving and may produce Outputs that are inaccurate, unreliable, inappropriate, infringing, or otherwise unsuitable or that do not meet your expectations.
You agree not to use the Generative Tools or the resulting Outputs in a manner that infringes upon or violates the rights of any third party or violates any applicable laws, rules, or regulations, and you acknowledge that (1) you are solely responsible for vetting and evaluating the accuracy, appropriateness, legality, and suitability of any Outputs before using them, including whether such use will infringe upon or violate the rights of others or require disclosure of the use of the Outputs; and (2) you assume all risk associated with your use of the Generative Tools and Outputs, and Booka will have no liability for such use.
You also acknowledge and agree that Booka and any third parties that provide artificial intelligence technologies used to provide the Generative Tools may access and use your Inputs, Outputs, and other User Content to train, improve, and develop such technologies and the Services, and for other research and development purposes, in each case in accordance with our Privacy Policy.
Any automated or AI-assisted scheduling, messaging, or reception functionality made available through the Booka Services is a technology feature, not a human employee or agent of Booka or of any Provider. Booka does not guarantee the accuracy, completeness, or suitability of any information provided by such a feature, and it does not constitute professional advice of any kind, including medical, healthcare, legal, or financial advice. Booka provides such features as a technology platform and is not a party to any interaction between such a feature and any Client or other third party, and is not responsible for the content of any communications made through such a feature, the accuracy of any information provided, or any harm arising from a Client's reliance on such information.
18. AGE REQUIREMENTS
We do not knowingly permit individuals under the age of 18 to maintain Accounts without parental consent. Booka does not knowingly collect or solicit personal information about children under 18, except with parental consent.
The Booka Services are not intended for use by minors under the age of 13. We do not collect personally identifiable information from any person we know is a child under the age of 13. Should we be alerted that we have inadvertently collected such information, we will take steps to promptly delete it.
19. TERMINATION
We may terminate, change, suspend, or discontinue any aspect of the Booka Services (including content, features, or hours of availability) at any time and for any reason. We also reserve the right to transfer our business and the Booka Services to a third party. We may restrict, suspend, or terminate your Account or your access to the Booka Services if we believe you are in breach of these Terms of Service or applicable law, or for any other reason permitted by law, without notice or liability.
If we have terminated your Account or otherwise cancelled your access, except where cancellation or deletion is initiated solely by you, you may not return to the Booka Services for any reason or in any manner without Booka's prior written consent, including under a new username or identity. If you do return, or attempt to return, after termination, you will be deemed to have breached these Terms of Service, and we reserve the right to obtain reimbursement for any costs and expenses incurred to enforce these Terms of Service and to pursue all other rights and remedies available at law or in equity.
If your Account is terminated by Booka or deleted by you, or if you cancel your Subscription: any pending transactions will be cancelled; any funds held for you in custody at the time of termination, deletion, or cancellation, less any Fees, will be paid out according to your payout schedule, assuming all payout-related requirements have been fulfilled; and your funds may be held if there is a pending investigation at the time of termination, deletion, or cancellation. If the investigation determines you are entitled to some or all disputed funds, we will promptly release them.
Additionally, upon Account termination, deletion, or Subscription cancellation for any reason or no reason, you agree that (i) you will be bound by these Terms of Service to the extent obligations survive; (ii) you will immediately stop using the Booka Services; (iii) any licenses granted to you under these Terms of Service shall end; (iv) your access to third-party platforms via the Booka Services will be cancelled; and (v) Booka may retain Account data (a) as required by law and/or (b) in the ordinary course of business as maintained in its data retention and backup systems, provided Booka may only use Account data pursuant to its Privacy Policy and applicable law. If your Account is deleted by you, Booka will process deletion of your Account data, except data we are legally permitted to retain (such as tax documents). Booka is not liable for any compensation, reimbursement, or damages in connection with termination, deletion, cancellation, or any termination of access to a third-party platform. Termination, deletion, or cancellation does not relieve you of any obligation to pay Fees, debts, or costs already accrued.
20. INDEMNIFICATION
By using the Booka Services, you acknowledge and agree that, in the event it becomes necessary or advisable for us to defend ourselves in a court of law or otherwise, we may rely on your representations and warranties contained herein. To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Booka and our subsidiaries and affiliates, and each of our respective directors, officers, partners, employees, and agents (individually and collectively, the "Booka Parties"), from and against any and all losses, claims, liabilities, demands, damages, fines, penalties, costs, and expenses ("Claims") arising out of or related to (i) your access to or use of the Booka Services or any Account; (ii) your User Content or Comments; (iii) your violation, infringement, or misappropriation of any rights of another (including intellectual property or privacy rights); (iv) your violation of these Terms of Service; or (v) your conduct in connection with the Booka Services or any Account. You will promptly notify the Booka Parties of any third-party Claims, cooperate in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys' fees). The Booka Parties reserve the right, in their sole discretion, to assume the exclusive defense, control, or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Booka or the other Booka Parties.
21. DISCLAIMER OF WARRANTIES
THE BOOKA SERVICES, INCLUDING ALL FEATURES, CONTENT, FUNCTIONS, AND MATERIALS PROVIDED THROUGH THE SITE AND APP, ARE PROVIDED "AS IS," "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, DISPLAYABILITY, ACCURACY, USEFULNESS, CORRECTNESS, PRECISION, OR THOROUGHNESS OF CONTENT OR INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED.
WE DO NOT WARRANT THAT THE BOOKA SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. BOOKA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SUITABILITY, RELIABILITY, TIMING, DURABILITY, LEGALITY, OR ANY OTHER ASPECT OF THE SERVICES OFFERED OR PROVIDED BY PROVIDERS OR REQUESTED BY CLIENTS, WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS, OR ABOUT THE ACCREDITATION, REGISTRATION, OR LICENSE OF ANY PROVIDER. WE MAKE NO WARRANTY THAT THE BOOKA SERVICES WILL MEET A PROVIDER'S REQUIREMENTS. NO ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE BOOKA SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. BOOKA ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE, FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR EQUIPMENT ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING ON THE SITE OR APP, OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, INFORMATION, TEXT, IMAGES, OR OTHER CONTENT FROM THE SITE OR APP.
WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY INFORMATION PROVIDED ON THE SITE OR APP AT ANY TIME AND WITHOUT PRIOR WARNING. WE WILL NOT BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY SUCH INFORMATION. UNDER NO CIRCUMSTANCES DOES YOUR USE OF THE BOOKA SERVICES FORM ANY RELATIONSHIP (OTHER THAN THE CONTRACTUAL RELATIONSHIP CREATED BY THESE TERMS OF SERVICE), WHETHER IMPLIED OR EXPRESS, WITH BOOKA. BOOKA DISCLAIMS ANY SUCH RELATIONSHIP AND ANY LIABILITY ARISING FROM YOUR USE OF ANY CONTENT ON THE SITE OR APP.
IT IS POSSIBLE FOR OTHER USERS OF THE BOOKA SERVICES TO OBTAIN PERSONAL INFORMATION ABOUT YOU DUE TO YOUR USE OF THE BOOKA SERVICES, AND THE RECIPIENT MAY USE SUCH INFORMATION TO HARASS OR INJURE YOU. WE ARE NOT RESPONSIBLE FOR THE USE BY OTHER USERS OF ANY PERSONAL INFORMATION YOU DISCLOSE THROUGH THE BOOKA SERVICES.
22. LIMITATION OF LIABILITY
IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL BOOKA, ANY OF ITS AFFILIATES OR REPRESENTATIVES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE "PROTECTED ENTITIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR INABILITY TO USE, THE BOOKA SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR LOST DATA. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT TRANSMITTED, EXCHANGED, OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE OR APP. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE) ARISING FROM THESE TERMS OF SERVICE OR YOUR USE OF THE BOOKA SERVICES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO BOOKA FOR YOUR USE OF THE BOOKA SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IF YOU ARE DISSATISFIED WITH THE BOOKA SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE BOOKA SERVICES.
WITHOUT LIMITING THE FOREGOING, AND FOR THE AVOIDANCE OF DOUBT, BOOKA'S TOTAL AGGREGATE LIABILITY TO ANY CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE) ARISING FROM OR RELATED TO THESE TERMS OF SERVICE OR ANY CLIENT'S USE OF OR INTERACTION WITH THE BOOKA SERVICES SHALL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT, IF ANY, PAID BY SUCH CLIENT DIRECTLY TO BOOKA (AND NOT TO A PROVIDER) IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE; OR (B) ONE HUNDRED DOLLARS ($100.00).
BOOKA EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN PROVIDERS AND CLIENTS RELATED TO OR ARISING FROM USE OF THE BOOKA SERVICES. BECAUSE BOOKA IS NOT INVOLVED IN THE PROVISION OF ANY SERVICES BY THE PROVIDER, YOU HEREBY RELEASE AND FOREVER DISCHARGE THE PROTECTED ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTION WITH ANY OTHER PROVIDER OR CLIENT, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF THE BOOKA SERVICES OR OTHERWISE.
YOU ACKNOWLEDGE AND AGREE THAT BOOKA HAS SET ITS FEES AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
23. BINDING ARBITRATION; JURY TRIAL WAIVER; CLASS ACTION AND REPRESENTATIVE ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL, AND YOUR RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION AGAINST BOOKA.
Arbitration — Providers and Registered Users.
Except for either party's claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret, any and all disputes between you (as a Provider, Account Owner, or other registered subscriber to the Booka Services) and Booka arising out of or relating in any way to these Terms of Service, including your use of the Booka Services, shall be fully resolved by binding arbitration as described in this Section. This agreement to arbitrate is intended to be interpreted broadly. YOU AGREE THAT BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND BOOKA ARE EACH WAIVING THE RIGHT TO SUE IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND BOOKA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OWN INDIVIDUAL CAPACITY, AND NOT AS A REPRESENTATIVE PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED OR PUTATIVE CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; YOU AND BOOKA AGREE THAT CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. The arbitration will be governed by the then-applicable Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association ("AAA"), as modified by this Section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you, and Booka must abide by the following rules: (i) the arbitration shall be conducted solely based on written submissions; and (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in New Castle County, Delaware. The arbitrator's ruling is binding and may be entered as a judgment in any court of competent jurisdiction. If this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New Castle County, Delaware. Claims of infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in New Castle County, Delaware. You agree to submit to the personal and exclusive jurisdiction of such courts.
Client Disputes — Mandatory Binding Arbitration.
(a) Scope. Except as provided in subsection (c) below, any dispute, claim, or controversy between a Client and Booka arising out of or relating to: (i) these Terms of Service; (ii) any booking, purchase, or transaction facilitated through the Booka Services; (iii) the Booka Services or any feature thereof; (iv) Booka's Privacy Policy; or (v) the relationship between any Client and Booka (collectively, "Client Disputes") shall be resolved exclusively by final and binding individual arbitration administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules (available at adr.org/consumer), as modified by these Terms of Service. This agreement to arbitrate is intended to be interpreted broadly and shall apply to all Client Disputes regardless of whether they sound in contract, tort, statute, or any other legal theory.
(b) Informal Resolution Required. Before initiating arbitration, each Client must first deliver a written "Notice of Dispute" to Booka at legal@booka.com that contains: (i) the nature and basis of the claim; (ii) the specific relief sought; (iii) the Client's name and email address and, if available, booking confirmation number; and (iv) the Client's signature. Booka will similarly provide written notice before commencing any arbitration against a Client. The parties shall use good faith efforts to resolve the dispute informally for at least 30 days after receipt of the Notice of Dispute before either party may initiate arbitration. The parties may agree to extend the informal resolution period.
(c) Exceptions. The following Client claims are not subject to mandatory arbitration: (i) claims that qualify for small claims court, provided the claim remains in that forum and is pursued solely on an individual basis; (ii) applications for temporary restraining orders or preliminary injunctions to prevent irreparable harm pending the outcome of arbitration; and (iii) claims for infringement or misappropriation of intellectual property rights.
(d) Arbitration Procedures. Arbitration shall be conducted before a single neutral arbitrator. For claims not exceeding $25,000: arbitration shall be conducted solely by written submissions, with no in-person hearing required, unless the arbitrator determines a hearing is necessary. For claims exceeding $25,000 requiring a hearing: the hearing shall take place in the county in which the Client resides, or remotely by telephone or video conference at the Client's election. The arbitrator may award any remedy available in a court of competent jurisdiction on an individual basis but may not award any relief benefiting anyone other than the Client party to the proceeding. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
(e) Arbitration Fees — Clients. For Client claims not exceeding $25,000, Booka will pay all AAA filing fees, administrative fees, and arbitrator compensation, except as set forth in subsection (g) below. For Client claims exceeding $25,000, AAA fee-sharing rules shall apply, except as set forth in subsection (g). If the arbitrator determines a Client's claim was frivolous or brought for an improper purpose (within the meaning of AAA Consumer Rule R-44(d)(ii)), Booka may seek reimbursement of its arbitration costs from the Client.
(f) CLASS ACTION AND REPRESENTATIVE ACTION WAIVER — CLIENTS.
EACH CLIENT AND BOOKA AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLAIMANT, OR CLASS MEMBER IN ANY PURPORTED OR PUTATIVE CLASS ACTION, COLLECTIVE ACTION, CLASS-WIDE ARBITRATION, REPRESENTATIVE ACTION, MULTI-PARTY ARBITRATION, CONSOLIDATED ARBITRATION, OR ANY OTHER PROCEEDING IN WHICH ANY PERSON ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY (COLLECTIVELY, "CLASS CLAIMS").
THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS AND MAY NOT PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL CLIENT SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE THAT CLIENT'S INDIVIDUAL RELIEF. ANY AWARD SHALL NOT AFFECT ANY OTHER CLIENT, EXCEPT AS SET FORTH IN SUBSECTION (G) BELOW.
IF ANY PORTION OF THIS CLASS ACTION WAIVER IS FOUND TO BE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM BY A COURT OF COMPETENT JURISDICTION, THEN (AND ONLY THEN): (I) THAT SPECIFIC CLAIM SHALL PROCEED IN COURT ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS ONLY; AND (II) ALL REMAINING CLAIMS SHALL CONTINUE TO BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS SET FORTH IN THIS SECTION. THE UNENFORCEABILITY OF THE CLASS ACTION WAIVER AS TO ONE CLAIM SHALL NOT AFFECT ITS ENFORCEABILITY AS TO ANY OTHER CLAIM, AND SHALL NOT AFFECT THE ENFORCEABILITY OF THE ARBITRATION AGREEMENT IN THIS SECTION.
(g) Mass Filing Procedures. If 25 or more substantially similar arbitration demands arising from the same or similar facts or seeking substantially similar relief within any 180-day period are filed by Clients or by Booka (a "Mass Filing"), the following procedures shall apply in lieu of ordinary AAA procedures: (i) filing fees shall be determined and payable in accordance with AAA's Consumer Mass Arbitration and Mediation Fee Schedule; (ii) AAA shall randomly select 10 demands to proceed as "Bellwether Cases" to be arbitrated to conclusion; (iii) all remaining Mass Filing demands shall be stayed and their filing fees and other fees and costs tolled pending completion of the Bellwether Cases; (iv) outcomes of Bellwether Cases shall not bind non-bellwether Clients but shall inform global settlement discussions; (v) following completion of the Bellwether Cases, the parties shall meet and confer for 90 days regarding global resolution, unless the parties mutually agree they have reached an impasse; and (vi) if no global resolution is reached, AAA shall select an additional batch of 10 demands for arbitration, repeating this process until all demands are resolved. Nothing herein prevents any individual Client from pursuing an individual, non-representative claim in small claims court for which they otherwise qualify. If Booka or any Client reasonably believes the provisions of this subparagraph (g) are likely to apply, the time to pay any filing fees shall be tolled until AAA determines whether the terms of this subparagraph apply.
(h) Opt-Out Right — Clients. A Client may opt out of the arbitration agreement in this Section 23 by sending written notice to legal@booka.com within 30 days of first accepting these Terms of Service (the "Opt-Out Deadline"). The notice must include: (i) the Client's full name; (ii) the Client's email address and, if available, booking confirmation number; and (iii) a clear statement that the Client elects to opt out of arbitration. Timely opting out means Client Disputes will be resolved in court subject to the terms of this Section, including subsection (i) (governing law and venue). The class action and representative action waiver in subsection (f) remains in full force and effect regardless of whether a Client opts out of arbitration.
(i) Governing Law; Venue for Non-Arbitrated Client Claims. These Terms of Service and all Client Disputes shall be governed by the laws of the State of Delaware, without regard to its conflict of law principles. For any Client claims not subject to arbitration under subsections (c) or (h), each Client consents to the exclusive jurisdiction and venue of the state and federal courts located in New Castle County, Delaware; provided, however, that Booka will not enforce this venue clause against Clients who bring claims in a small claims court with proper jurisdiction over such claims.
(j) Jury Trial Waiver — Clients. FOR ANY CLIENT DISPUTE THAT IS NOT RESOLVED THROUGH ARBITRATION, EACH CLIENT AND BOOKA HEREBY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(k) Survival. The arbitration agreement, class action waiver, and jury trial waiver provisions of this Section 23 shall survive the termination or expiration of these Terms of Service and shall continue to apply to any dispute arising from events that occurred prior to such termination.
24. ENTIRE AGREEMENT
These Terms of Service, which incorporate the Privacy Policy, Data Processing Addendum, Acceptable Use Policy, Payments Terms, Referral Program Policy, and any applicable SMS Terms, constitute the entire agreement between you and us regarding the use of the Booka Services.
25. MISCELLANEOUS
These Terms of Service, and the relationship between you and us, shall be governed by the laws of the State of Delaware, United States of America, without regard to conflict of law provisions. Our failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation." If any provision of these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Booka is that of an independent contractor, and neither party is an agent or partner of the other. These Terms of Service, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Booka's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. These Terms of Service may be assigned, subcontracted, delegated, or otherwise transferred by Booka in its sole discretion. These Terms of Service shall be binding upon any permitted assignees.
26. COPYRIGHT INFRINGEMENT CLAIMS
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Booka Services infringe your copyright, you (or your agent) may send Booka a written notice by mail or e-mail requesting that Booka remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Booka a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to the Designated Agent as follows:
By e-mail to the Designated Agent at copyrightagent@booka.com, or by mail to:
Booka, Inc. 8605 Santa Monica Blvd. PMB 382566 West Hollywood, CA 90069-4109
The Designated Agent's phone number is [PHONE NUMBER].
QUESTIONS
If you have questions about these Terms of Service, please email us at support@booka.com.