Last Updated on: August 28, 2019
By signing an Order Form that references this Subscription Services Agreement (collectively, "Agreement") Booker Software, Inc. a Delaware corporation (“Booker”) and you (“Company”) agree as follows:
The following capitalized terms have the meanings set forth below:
1.01. "Application(s)" or "App(s)" means the specific edition of Booker's online customer relationship management, billing, data analysis, reservations system, point of sale system, marketing, or other corporate Enterprise Resource Planning (ERP) software applications identified in an Order Form developed, operated, and maintained by Booker, its corresponding Documentation, and online or offline components, if any, to which Company is being granted access under this Agreement as part of the Subscription Services.
1.02. "Booker" means Booker Software, Inc., a Delaware corporation, with an office at 165 Broadway #702, New York, New York 10006, or its successors and assigns.
1.03. "Booker Marketing Network" means a Booker-provided service that allows a Company to receive bookings online through Booker’s network marketing partners.
1.04. "Booker Material(s)" means information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics and interactive features generated, provided or otherwise made accessible on or through the Applications, Subscription Services and/or Professional Services.
1.05. "Booker Properties" means Applications, Subscription Services and Professional Services.
1.06. "Booker Technology" means all of Booker's and its licensors' proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, the Documentation, training materials, templates, and other tangible or intangible technical material or information, used by Booker to provide the Subscription Services.
1.07. "Commercial Offering(s)" means Company's products and/or services, including those of its suppliers, which are made available to Purchasers through the Subscription Services. Commercial Offerings are inclusive of any online or offline marketing and sales efforts or transactions with Purchasers.
1.08. "Company" means the legal entity identified in the Order Form or statement of work (“SOW”) that incorporates by reference the terms and conditions of this Agreement.
1.09."Company Data" means any data, information or material provided, submitted, or made available to the Subscription Services by Company or Purchasers in the course of using the Subscription Services. Company Data includes service appointment availability, pricing, and booking information of Company ("Company Appointment Data").
1.10. "Company Material(s)" means any Company-provided audio files, logo images, digital photographs and other graphic files, text, branding guidelines, style guides, and other data, documentation or materials.
1.11. "Contact-Based Pricing" means a pricing plan and subsequent charges for Subscription Services that is based on the number of subscribed contacts at a single business location. Multiple locations are charged per location, based on the number of contacts subscribed to each individual location.
1.12. "Deliverable(s)" means any work product or other deliverables to be developed and/or provided to Company in connection with the performance of Professional Services.
1.13. "Documentation" means the online user instructions and help files made available by Booker as part of the user interface for the Subscription Services, as updated from time to time.
1.14. "Effective Date" means the date of latest execution of an Order Form or SOW that incorporates by reference the terms and conditions of this Agreement.
1.15. "Marketing Services" means MINDBODY’s online marketing platform, which allows consumers to locate a Company and evaluate, review and book their services, directly through the MINDBODY App and/or through our partner applications. Marketing Services is separate and distinct from the Booker Marketing Network.
1.16. "MINDBODY App" means the consumer-facing, downloadable mobile app made available by MINDBODY and known as the "MINDBODY App" (and its successor products), which allows consumers to use their mobile devices to find, book and pay for the services of a participating Company.
1.17. "Net Transaction Value" means amounts payable by a Purchaser for a service appointment booked through the Booker Marketing Network integrated with the Subscription Service through which Booker exchanges appointment booking data as part of Booker’s general marketing programs, but excluding sales taxes, service taxes or amounts attributable to products, and excluding bookings which originate on Company’s own website.
1.18. "Order Form(s)" means a form evidencing the initial subscription for the Subscription Services and any subsequent order forms submitted online or in written form, specifying Subscription Services or Professional Services purchased, the applicable fees, and other terms as agreed to between the parties.
1.19. "Participating Property" means each of Company's individual business locations expressly identified in the applicable Order Form to which the Subscription Services, or Professional Services will be made available during the Subscription Term.
1.20. "Payment Information" means credit card holder names, billing addresses, credit card numbers and expiration dates as entered by Company and Purchasers.
1.21. "Professional Service(s)" means training, marketing, support or other professional services that Booker may perform pursuant to a mutually agreed-upon SOW issued pursuant to this Agreement or purchased pursuant to an Order Form, as applicable.
1.22. “Privacy Annex” means the policy covering each party’s responsibilities for Company Data originating from the European Economic Area which is located at www.booker.com/privacy-annex (or such other URL as specified by Booker) and incorporated herein by reference.
1.24."Purchaser(s)" means individuals or companies who interact with the public-facing user interface and features of the Subscription Services for purposes of conducting business with Company. Purchasers are not Users.
1.25."Purchaser Services" means publicly accessible services offered by Booker that Purchasers may utilize or purchase.
1.26. "Recently Acquired Offerings" currently include those from, or branded with, Bowtie Labs, Inc., and other applicably designated acquisitions which we make you aware.
1.27."Security Policy" means the policy describing the reasonable and appropriate security controls Booker takes to protect the Services, Company Data against foreseeable hazards, which is located at www.booker.com/security-policy (or such other URL as specified by Booker) and incorporated herein by reference.
1.28."Subscription Instance" means a unique location ID issued by Booker to Company, or each Participating Property, as identified on the Order Form.
1.29."Subscription Services" means the provisioning, hosting, maintenance and support of the Applications by Booker and its third party providers by and through the Booker Technology.
1.30."Subscription Term" means the minimum annual period during which Company purchases the Subscription Services, as set forth in the applicable Order Form.
1.31."User(s)" means Company's employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Services on behalf of Company for Company's internal business and have been supplied user identifications and passwords by Company (or by Booker at Company's request). Users are not Purchasers.
2. Provision of Subscription Services.
2.1 General Terms. Booker will make the Subscription Services available to Company pursuant to this Agreement and the relevant Order Form during each Subscription Term ordered. Company shall register for an account on the Subscription Services (a “Company Account”) and Company shall provide accurate and complete information and keep Company Account information updated. Company is solely responsible for the activity that occurs on the Company Account, and for keeping the Company Account password secure. Company shall be responsible for the acts or omissions of any person, including without limitation Users, who access the Booker Properties using passwords or access procedures provided to or created by Company. Booker will host the Applications for which Company purchases a subscription (except for off-line components for such Applications) as part of the Subscription Services. Company's use of the Subscription Services includes the right to access all functionality available for the Application as of the date of Order Form. Subsequent enhancements to the Applications made generally-available to all subscribing customers for the same offering will be made available to Company at no additional charge and are subject to the terms of this Agreement. However, any new Applications, modules or enhancements that are not offered generally by Booker as part of the purchased Subscription Services may require the payment of additional fees, and Booker will determine at its sole discretion whether access to any of the foregoing requires an additional fee. From time to time Booker may invite Company to try Booker products or services that are not generally available to Booker's customers ("Non-GA Services"). Company may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided on a temporary basis for evaluation purposes, are not supported, may contain bugs or errors, and may be subject to additional terms. Non-GA Services are not considered "Subscription Services" hereunder and are provided "AS IS" with no express or implied warranty. Booker may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available. In connection with the foregoing and subject to this Agreement, Booker grants Company a limited, revocable, non-exclusive, non-sublicensable, non-assignable and non-transferable license to access, use, display and run the Subscription Services through a generally available web browser, mobile device or Booker authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of Booker) for use in connection with Company’s business in accordance with the terms and conditions set forth in this Agreement.
Additional terms specific to the procurement of the Branded Mobile App apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
Certain additional terms apply if you are entering information that originates in the European Economic Area.
To the extent that Booker acts as a “processor” to you as a “controller” as defined in the EU General Data Protection Regulation 2016/679, in relation to Company Data originating from the European Economic Area, the terms of the Privacy Annex apply between Booker and Company. In the event the terms of the Privacy Annex and the terms of this Agreement conflict, the terms of the Privacy Annex will prevail.
2.3 Payment Processing. Booker offers the ability to process payments through the Subscription Services (“Payment Processing Services”). The Payment Processing Services are provided by our third-party payment processing partners as a Third-Party Service and any procurement by Company will be subject to a separate merchant agreement which will be solely between Company and the third party processer. If Company uses Payment Processing Services it agrees that it will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.
To the extent permitted by law, we may collect any obligations Company owes under this Agreement by deducting the corresponding amounts from funds payable to you arising from the settlement of card transactions through MINDBODY Payments. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your account for any amounts owed to us. In the event a consumer chargeback or dispute occurs, you may be charged up to fifteen dollars ($15) per occurrence by Booker. Company’s failure to fully pay amounts that are owed to Booker on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest. Additionally, Company may be required to provide a personal guaranty from a principal of the business for funds owed under this Agreement. If a personal guarantee is required, Booker will specifically inform Company. In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to MINDBODY by you. Such communication may be made by Booker or by anyone on its behalf, including but not limited to a third-party collection agent.
Booker may offer special pricing, credits, and/or discounts to Company for the Subscription Services contingent upon timely procurement, and continued material usage, of the Payment Processing Services and/or MINDBODY Payments. In the event Company stops utilizing the Payment Processing Services and/or MINDBODY Payments, Booker may, in its sole discretion, revoke the special pricing, credits, and/or discounts being applied to the Subscription Services.
2.4 Smart Payment Terminals. Additional terms specific to the procurement of Smart Payment Terminals apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.5 Recently Acquired Offerings. As an administrative courtesy to you, we may offer Recently Acquired Offerings to you through this Agreement before fully integrating, testing, and improving such offerings to meet our standards, which may take up to twelve (12) months. All representations and/or warranties made by us in this Agreement do not apply to such Recently Acquired Offerings.
2.6 Marketing Services. As part of the Subscription Services, Company may be provided the opportunity to utilize the Marketing Services. From time to time, MINDBODY may also offer Company the opportunity to participate in promotional programs ("MINDBODY Promote"), which are designed to promote their businesses and attract Purchasers through the Marketing Services. To enroll in MINDBODY Promote, you must review and agree to the applicable MINDBODY Promote terms and conditions accessible at https://company.mindbodyonline.com/legal/terms-of-service/promote-terms (or such other URL as specified by MINDBODY) ("MINDBODY Promote Terms"). MINDBODY reserves the right to charge fees for MINDBODY Promote in accordance with the MINDBODY Promote Terms. If you enroll in MINDBODY Promote, you agree to pay all applicable fees for MINDBODY Promote in accordance with Section 11.1 of this Agreement. In the event of any conflict between this Agreement and the MINDBODY Promote Terms, the MINDBODY Promote Terms will apply.
3. Professional Services. Booker may provide Company with Professional Services as mutually agreed upon and as identified in an Order Form or SOW mutually executed by Booker and Company. Each SOW will include, at a minimum: (i) a description of the Professional Services and any Deliverables; (ii) the schedule for the provision of such Professional Services; and (iii) fees and payment terms for such Professional Services, if not elsewhere specified. All SOWs are part of and subject to this Agreement. If either Company or Booker request a change in any of the specifications, requirements, Deliverables, or scope of the Professional Services described in a SOW, mutually agreed-to changes in Professional Services or Deliverables will be binding against the parties only upon execution of a written change order signed by both parties ("Change Order"). Executed Change Orders are part of, and subject to, this Agreement. Company acknowledges that Booker's ability to timely deliver Professional Services is dependent in part upon Company's ongoing cooperation and assistance. Accordingly, Company will supply to Booker, on a timely basis, all information, material and assistance reasonably necessary for Booker to perform the Professional Services, including, without limitation, the Company Data and such additional information, material and assistance identified in the applicable Order Form or SOW. Booker's period of performance under this Agreement shall be appropriately and equitably extended to account for any delays resulting from Company's failure to fully comply with the foregoing.
4. Acceptable Use. Company may only use the Subscription Services in accordance with the Documentation and this Agreement for purposes of operating its business and not for further resale or distribution. Unless otherwise set forth in an Order Form, Company understands and agrees each Participating Property must obtain at least one Subscription Instance for the Subscription Services. Subscription Instances may not be shared among two or more Participating Properties. If any unauthorized person or entity attempts to visit or enter the Booker Properties, they shall be deemed to be accessing a computer without authorization and trespassing on the Booker Properties and shall be liable for damages resulting therefrom. For clarity, Melian Labs, Inc. is not an authorized entity, and use of Melian Labs, Inc.’s MyTime service shall be deemed to be trespassing on the Booker Properties. Company’s violation of the provisions of any license granted by Booker under this Agreement shall constitute, among other offenses, trespass, breach of contract, and access of a computer without authorization with the intent to cause damage. Company will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make Booker Properties available to any third party other than Users and Purchasers; (ii) use Booker Properties to collect, transmit or process (a) infringing, offensive, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines on or through Booker Properties that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (c) confidential health information governed under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); (d) unencrypted identifiable financial information (such as Social Security numbers, credit card numbers, bank account numbers, or bank routing information); (e) password information for any third-party users (iii) interfere with or disrupt the integrity or performance of the Booker Properties; or (iv) attempt to gain unauthorized access to the Booker Properties; (v) access Booker Properties for the purpose of building a similar or competitive offering; (vi) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile Booker Properties or any part thereof or otherwise attempt to discover any source code or modify the Booker Properties. Company is responsible for all Users' compliance with this Agreement, for charges incurred by Users under Company Account, and for ensuring that Users maintain the confidentiality of their passwords and user names. Certain editions of the Applications offer integration capabilities via an application programming interface, or API. The number of API calls Company can make per account at no additional charge is limited (excluding calls resulting from use of Booker Purchaser applications, SpaFinder.com, and Booker-certified applications) to an aggregate maximum of 200,000 calls/day/account. Calls to the API that exceed the daily maximums in the preceding sentence may require payment of additional charges. Booker may (but have no obligation to), in its sole discretion, remove or modify any content, data or information submitted by Company which Booker deems to violate this section. Company agrees that it (and that Company’s provision of its Commercial Offerings) shall comply with any and all applicable laws, rules and regulations relating to the collection, use, storage, processing and disclosure of personally identifiable information (including any Company Data containing personally identifiable information or any other personally identifiable information of any Users or Purchasers), as that term is defined in any applicable jurisdiction (collectively, “Privacy Laws”). Booker shall not be responsible for and shall incur no liability arising out of Company’s compliance with any Privacy Laws. If Company does not agree to any provision of this Section 4, Company may not use the Booker Properties or any other services offered by Booker.
5. Purchaser Terms. During the Subscription Term, Company may conduct business with Purchasers relating to the Commercial Offerings, including without limitation, entering into correspondence with, advertising, selling, or offering promotions to Purchasers regarding such Commercial Offerings. Company warrants to Booker that Company has the legal right to engage in the foregoing activities with respect to the Commercial Offerings. In furtherance of the foregoing and on the condition that Purchaser complies with all terms and conditions of this Agreement and subject to this Agreement, Booker grants such Purchaser a limited, revocable, nonexclusive, nonassignable, nonsublicensable right and license to access, use, display and run the Purchaser Services through a generally available web browser, mobile device, or Booker authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of Booker) to make appointments, schedule classes, make purchases, and for any other use that Booker currently makes available or may make available through the Purchaser Services. Company is solely responsible for the terms, conditions, warranties or representations associated with conducting business with Purchasers relative to the Commercial Offerings. Company acknowledges and agrees that Company is solely responsible for establishing and enforcing the terms and conditions under which each Purchaser accesses and uses the Subscription Services for purposes of transacting business with Company, provided such will contain terms and conditions that substantially and without contradiction: (i) inform Purchasers that Booker operates all or portions of Company's web site pursuant to contractual agreements with Company, the provider of the services and/or products sold on the website; (ii) state that Booker and Company are not affiliates of one another and have no relationship with one another other than through these agreements; (iii) inform the Purchaser that Company may be collecting non-public personally-identifiable information about such Purchaser in connection with the Purchaser's use of Company's website and obtains the Purchasers' consent as required by applicable law to Company's and Booker's use of such non-public and personally-identifiable information for the foregoing purposes; (iv) expressly notifies the Purchaser that the Commercial Offerings offered by Company are in no way sponsored, endorsed or administered by, or associated with, Booker; (v) disclaim on behalf of Booker all implied and express warranties related to the Applications and Subscription Service, Company's website, and the Commercial Offerings, and (vi) limit the liability of Booker such that Booker will not, to the maximum extent allowable by law, be liable to any Purchaser for any direct, indirect, consequential, exemplary, special or punitive damages, regardless of the nature of the claim asserted against Booker and whether Booker was informed of the possibility of such damages. In complying with the foregoing requirements, Company may refer to Booker specifically or generically by use of terms such as "supplier," "vendor," "licensor," "service provider" or other similar term. In addition, Company will not make any warranties, representations or commitments to Purchasers in such terms of service which would (a) imply an endorsement by Booker of any Commercial Offering; (b) purport to bind Booker to any legal obligations owed by Company to the Purchaser; or (c) entitle any Purchaser to enforce the terms of this Agreement against Booker. Booker and Company will reasonably collaborate and mutually agree to include adequate disclaimers or notices on the Subscription Services to give effect to the foregoing provision. No Purchaser is a third party beneficiary of this Agreement.
7. Data Safeguards. Except for account-specific configurable security settings in the Applications, Company acknowledges and agrees that the nature of the Applications and the hosting environment utilized to provide the Subscription Services prevent Booker from implementing or maintaining customer-specific security policies or procedures for the protection of Company Data. However, at all times during a Subscription Term, Booker will implement and maintain, and require that its third party providers implement and maintain, appropriate administrative, physical, and technical safeguards for the protection, security, confidentiality and integrity of Company Data, set forth in further detail in Booker’s Security Policy ("Data Safeguards"). Booker reserves the right to change the configuration of Booker’s host computer system and change or eliminate equipment or software at any time in Booker’s sole discretion. Company will at no time use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Application, the Subscription Services, or Booker's compliance with the obligations related to the Data Safeguards described in the Security Policy. Booker will promptly notify Company in the event of any known and verified breach of the Data Safeguards involving Company Data or Company's Confidential Information. Company will promptly notify Booker in the event of any known or suspected unauthorized use of a User password or Company account or any other breach of the Data Safeguards. Booker and Company will provide each other reasonable cooperation and information in connection with any such incident. Company shall not issue any public communications, including without limitation any communication via social media, regarding an unauthorized disclosure of Company Data without Booker’s consent, provided the foregoing will not limit or restrict Company from communicating with legal authorities, auditors, insurance providers, or legal advisors.
9. Intellectual Property Rights.
9.1. License to Use Company Data and Company Materials.Subject to the terms and conditions of this Agreement, including Booker’s confidentiality obligations, Company hereby grants Booker a limited, non-exclusive, sublicensable, royalty-free, worldwide license to use the Company Materials and Company Data and perform all acts with respect to the foregoing during a Subscription Term, solely as may be necessary for Booker to exercise the rights or perform the obligations set forth in this Agreement. Company further grants to Booker a limited, non-exclusive, sublicensable, royalty-free, worldwide license to copy and distribute Company Materials and Company Data directly or indirectly through Booker’s authorized partners, resellers, content aggregators, distributors, and/or marketing service providers, unless Company has implemented features in the Application to opt-out of such distribution, in which case the foregoing license is null and void.
9.2. Ownership of Company Data and Company Materials. Company and its licensors retain all right, title and interest, including all related intellectual property rights, in and to Company Data and Company Materials. This Agreement does not convey to Booker any rights of ownership in or related to the Company Data or Company Materials. As between Booker and Company, Company, and not Booker, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of all Company Materials and Company Data submitted to the Application.
9.3. Company Trademark License. During the Subscription Term, Company grants to Booker a royalty-free, worldwide, non-exclusive, sublicensable license to use and display as part of or in connection with the Subscription Services or other third party services those Company or third party trademarks or service marks that are contained in the Company Materials ("Company Marks"). Booker has no rights to modify the Company Marks in any way without obtaining the prior consent of Company. If Booker is performing Professional Services which entail Booker's use of Company Marks (for example, assisting Company with branding the user interface for the Application), then Booker's use of the Company Marks will be subject to Company's prior review and approval, and Company will provide all necessary branding and trademark guidelines to Booker as part of the engagement. If Company uploads Company Marks to the Subscription Services as permitted by the Documentation, then Company is solely responsible for ascertaining whether the use of Company Marks complies with Company's branding and trademark guidelines.
9.4. Ownership of Company Marks. Booker acknowledges that Company is the sole and exclusive owner of the Company Marks and all goodwill associated with the Company Marks and that Booker's use of the Company Marks pursuant to this Agreement will not create any right, title or interest in such Company Marks in Booker. Booker agrees that its use of the Company Marks and all goodwill associated with such use will inure to the benefit of and be on behalf of Company. Company will have the sole right and discretion to bring, prosecute and settle infringement, unfair competition and similar proceedings based on the Company Marks.
9.5. Ownership of Booker Properties. Booker and its licensors retain all right, title and interest, including all related intellectual property rights, in and to the Booker Technology, the Booker Materials, and the Booker Properties. This Agreement is not a sale and does not convey to Company any rights of ownership in or related to the Booker Technology, Booker Materials or Booker Properties. The Booker name, the Booker logo, and the product or service names associated with the Booker Properties ("Booker Marks") are trademarks of Booker or affiliated third parties, and no right or license is granted to use the Booker Marks to Company, any User, or any other third-party without the prior, express written consent of Booker. Company acknowledges that Booker is the sole and exclusive owner of the Booker Marks and all goodwill associated with the Booker Marks vests in Booker. Booker will have the sole right and discretion to bring, prosecute and settle infringement, unfair competition and similar proceedings based on the Booker Marks.
9.6. Feedback. Booker will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Booker Technology, Booker Materials, and/or Booker Properties any suggestions, enhancement requests, recommendations or other feedback provided by Company and Users relating to the Booker Technology, Booker Materials or the Booker Properties ("Feedback"). Company acknowledges and agrees that any Booker Technology, Booker Materials or Booker Properties incorporating such Feedback is the sole and exclusive property of Booker and all such Feedback is free from any confidentiality restrictions that might otherwise be imposed upon Booker pursuant to Section 10 below.
9.7. Ownership of Deliverables. As between Booker and Company, Company exclusively owns all right, title and interest in and to any Deliverables prepared in connection with Professional Services that constitute Company Data or Company Materials, or a derivative work of the foregoing ("Company Deliverables"), and Booker hereby assigns and transfers to Company any right, title or interest that Booker may acquire in or to any Company Deliverables upon receipt of payment in full from Company for the relevant Professional Services under which the Company Deliverables were prepared. Except for Company Deliverables, Booker owns all rights, title and interest in and to all other Deliverables, including specifically any modification, enhancement or other derivative work of the Booker Technology, Booker Materials or Booker Properties, and related intellectual property rights in such Deliverables. Subject to terms and conditions of this Agreement, and during the Subscription Term, Booker hereby grants Company a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely in connection with Company's authorized use of the Application as part of the Subscription Service. Notwithstanding any other provision of this Agreement: (i) nothing herein may be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise ("Tools") used by Booker to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Company, on the same terms as the Deliverables; and (ii) neither the term "Deliverables" or "Company Deliverable" includes the Tools.
9.8. Comparative Data. Company understands and agrees that portions of the Subscription Services may entail comparative analysis and/or reporting of Company or the Company Offerings vis-à-vis aggregated data about similar businesses or offerings ("Comparative Data"). To the extent that Company's subscription to the Application includes features and functions that utilize or display Comparative Data, Booker hereby grants Company a limited, non-exclusive, worldwide, royalty-free right and license to use such Comparative Data during the Subscription Term solely by Users for Company's internal business use and not for further distribution. As a condition to receiving the foregoing license, Company grants Booker a limited, non-exclusive, worldwide, perpetual, royalty-free right and license to use Company Data in unidentified form to aggregate it with Comparative Data, provided at no time will Comparative Data incorporate any Company Materials and/or identify Company, its Users, or Purchasers. Booker retains all intellectual property rights in such aggregated Comparative Data.
9.9. Product Research Information. Company grants Booker a limited, non-exclusive, worldwide, perpetual, royalty-free right and license to use information regarding Company's use of the Subscription Services in a generalized and unidentified form for product research, product development, marketing, and business analysis ("Product Research Information"). Product Research Information may consist of, by way of example but not limitation: (i) aggregated total transactions, bookings, or revenue attained by all Booker customers' use of the Subscription Services, (ii) Application usage analysis, such as industry-specific use cases, most- or least-used features or functions, preferred integrations with third party systems or applications, average API calls, (iii) Application or other performance information. At no time will the foregoing incorporate any Company Materials and/or identify Company, its Users, or Purchasers. Booker retains all intellectual property rights in such Product Research Information.
9.10. Take Down Notice and Procedure. Booker will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material, including any Company Material, displayed by use of the Applications, or residing on Booker's websites or servers and will respond appropriately, following Booker’s DMCA Copyright Policy www.booker.com/dmca. If appropriate, and regardless of the merits of the alleged infringement, Booker's response may include removing or disabling access to any Company Material claimed to be the subject of infringing activity. If Booker removes or disables access in response to such a notice, Booker will notify Company or the owner of such material, as applicable, so that Company or the relevant owner can make a counter notification. Booker will, following appropriate investigation, terminate or disable access to the Applications by repeat infringers.
10. Confidential Information.
10.1. Definition. "Confidential Information" means all non-public, confidential information of a party ("Disclosing Party") disclosed to the other party under this Agreement ("Receiving Party"), whether orally or in writing, that is designated as confidential at the time of disclosure, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement. Confidential Information of Booker may include pricing and discounts for the Subscription Services and Professional Services, the Booker Technology, Application or Service roadmap information, Product Research Information, Comparative Data, Booker's supplier information, marketing plans, and Booker company financial information.
10.2. Treatment of Confidential Information. Except with the Disclosing Party's permission, the Receiving Party may not disclose the Confidential Information to any third party other than its contractors or authorized representatives who are subject to binding obligations of confidence substantially similar to those set forth in this Agreement.
10.3. Permitted Disclosure. The obligation of confidentiality does not apply to any Confidential Information that: (i) is or is hereafter made publicly available by the Disclosing Party, (ii) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (iii) is already known to the Receiving Party at the time of disclosure by the Disclosing Party without a breach of any obligation owed to the Disclosing Party; (iv) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (v) is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information (except for patentable subject matter, which is excluded from this exception); (vi) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.
10.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages. The foregoing notwithstanding, Company irrevocably waives any right to enjoin or restrain the operation of the Applications or Subscription Services as a whole, or Booker's or its customers' use of any content or other material used or displayed through the Subscription Services, other than Company's Confidential Information.
11. Charges and Payment of Fees and Taxes.
11.1. Payment Terms. You agree to pay Booker all fees stated on an Order Form, SOW, or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form or SOW, fees must be paid in advance of each billing period. You will provide Booker with valid and updated credit card information or another form of payment acceptable to Booker. If you provide credit card information, you represent that you are authorized to use the card and you authorize MINDBODY to charge the card for all payments hereunder. By submitting payment information, you authorize Booker to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Booker for purposes of acknowledging or completing any payment.
11.1.1. Enrollment Fee. Company will pay, in advance, the one-time, non-refundable enrollment fee in each Order Form.
11.1.2. Company Network Performance Fees. On a monthly basis, Booker will calculate and charge Company Network Performance Fees of fifteen percent (15%) of the Net Transaction Value of each booking made through the Booker Marketing Network.
11.1.3. Contact-Based Pricing. For Subscription Services that include Contact-Based Pricing, subsequent changes to Company’s monthly subscription fees will be made no sooner than two weeks from the time Booker has determined a change in the number of valid subscribers Company has per location.
11.2. Taxes. Booker's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Company is responsible for all such taxes, levies, or duties, excluding only United States (federal or state) taxes imposed upon Booker, based on Booker's income. If Booker has the legal obligation to collect and pay any federal, state, or local taxes associated with sales of its products and / or services, the Company authorizes Booker to collect and remit such taxes due.
11.3. Payment Errors. If Company believes any payment processed by Booker in accordance with Section 11.4 is incorrect, Company must contact Booker in writing within ten (10) days of the date of the applicable statement date containing the amount in question setting forth in specific detail the specifics of the amount(s) in dispute, or such payment will be deemed final.
11.4. Payment Methods. Booker is pleased to accept payment for use of certain Booker Properties by supported credit cards under the terms and conditions in this Section. Company hereby authorizes Booker to bill Company’s credit card on file with Booker on the Effective Date for the fees payable for the initial billing period and on each monthly anniversary of the Effective Date for the fees then payable. In addition, if Company utilizes one of Booker's Preferred Acquirers to process Purchaser payments for the Commercial Offerings, then Company hereby consents to have the Preferred Acquirer draw payments owed to Booker under this Agreement as a direct debit from Company's bank account rather than via credit card payment. For purposes of this Section, a "Preferred Acquirer" means a third party that processes credit and or debit card payments for the Commercial Offerings for Company. Payments made by means of a credit card or direct debit shall be due and payable immediately on the pertinent payment period set forth in the Order Form, and shall not require the issuance of a corresponding invoice. The availability of Services that are purchased by credit card or direct debit payments shall be subject to confirmation of payment receipt in full at the sole discretion of Booker. By using a credit card to pay for the use of Booker Properties, Company confirms that the card being used is Company's. All credit card holders are subject to validation checks and authorization by the card issuer and Booker is not obliged to inform Company of the reason for any refusal. Booker bears no responsibility for Company card issuer or bank charging Company as a result of Booker's processing of Company payments in accordance with Company's instructions. If Company's order contains multiple services, Company may see multiple charges on Company's credit or debit card statement. By execution of this Agreement, Company specifically and expressly affirms the applicable authorizations to effect such direct debits and/or charges.
11.5. Late Payment. Delinquent payments are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If Company or Booker initiate termination of this Agreement, Company will be obligated to pay the balance due on Company's account computed in accordance with the terms of this Agreement. Booker reserves the right to impose a reconnection fee of 100% of the previous month's Subscription Services fees if Company is suspended due to non-payment and thereafter requests access to the Subscription Services.
12. Term and Termination.
12.1. Agreement Term. This Agreement commences on the Effective Date and, unless earlier terminated in accordance with the provisions herein, will continue in full force and effect for so long as Order Forms are in effect between Company and Booker.
12.2. Subscription Term; Renewal. Each Subscription Term commences on the date of execution of the applicable Order Form and continues for the period set forth in such Order Form. The Subscription Term shall automatically renew in successive and consecutive periods of the same length as originally purchased, unless Company provides written notice of non-renewal at least thirty (30) days prior to the upcoming Subscription Term renewal date. Booker reserves the right to increase pricing for the Subscription Services applicable during a renewed Subscription Term, provided such (i) shall be noted in Booker's quote or other communication issued at least thirty (30) days prior to the upcoming Subscription Term renewal date, and (ii) shall not exceed Booker's then-current standard pricing for the such Subscription Services. If Company has purchased an annual Subscription Term and elects to terminate the receipt of Subscription Services during a Subscription Term for its convenience, Company must issue no less than sixty (60) days' prior written notice of such termination, the effective date of termination shall be the last day of the second calendar month following receipt of notification. By way of example, if Company issues notice of termination on May 18th, termination shall not be effective, until July 31st. If Company has purchased a month-to-month Subscription Term and elects to terminate the receipt of Subscription Services during a Subscription Term for its convenience, Company must issue thirty (30) days' prior written notice of such termination, the effective date of termination shall be the thirty (30) days following receipt of notification.
12.3. Termination for Cause. This Agreement may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party is declared bankrupt or insolvent, ceases to do business without a successor, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder.
12.4. Termination by Booker. Booker may terminate this Agreement in the event that: (a) Company makes any disparaging statements or representations, either directly or indirectly, via social media and/or on publicly accessible Internet sites, about Booker or its goods or services or any of its or their directors, officers, employees, agents; (b) Booker is required to do so by law; or (c) where the parties do not agree on the use of a sub-processor. For purposes of the sub-section (a) , a disparaging statement or representation is any which would cause or tend to cause the recipient of such communication to question the business condition, integrity, competence, good character or product quality of the person or entity to whom the communication relates.
12.5. Account Suspension. Booker may immediately suspend Company's, Users' and Purchasers' access to the Subscription Services in the event that (i) either Company, a User or Purchaser is engaged in, or Booker in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of this Agreement, any applicable law or third party right), or (ii) Company's account is delinquent for more than sixty (60) days from the original payment due date. Booker will notify Company prior to or contemporaneously to such suspension. Booker will use diligent efforts to limit any suspension only to the affected portions of the Subscription Service, and to promptly restore the Subscription Services upon satisfactory cure or resolution of the issues triggering such suspension.
12.6. Effect of Termination. If Booker and Company have issued a single Order Form pursuant to this Agreement, termination of the Order Form will automatically terminate this Agreement. If Booker and Company (including Participating Properties) have issued multiple Order Forms pursuant to this Agreement, termination of one Order Form with a Participating Property will not terminate any other Order Form with a different Participating Property or this Agreement. However, upon termination of this Agreement pursuant to Section 12.3, all subscriptions granted under all Order Forms issued under this Agreement will terminate immediately. Upon termination of this Agreement or an Order Form, all rights and licenses granted by one party to the other under this Agreement will terminate, except with respect to Company Data in Booker's possession, which Booker will make available to Company solely through existing reporting functionality in the Booker application a file within thirty (30) business days of termination if so requested by Company in writing at the time of termination. Booker reserves the right to withhold any Company Data in the event Company fails to pay any amount owed to Booker when due, for so long as such payment is unpaid. Company agrees and acknowledges that sixty (60) days after the effective date of termination Booker has no obligation to retain the Company Data and may, unless legally prohibited, delete such Company Data in its systems or otherwise in its possession or under its control. In the event of termination of a project set forth in an applicable SOW, Company agrees to pay Booker all Professional Services fees due, and unreimbursed out-of-pocket expenses incurred by Booker up to the date of termination or expiration of such SOW.
12.7. Survival. Sections: Section 1 ("Definitions"), Section 9 ("Intellectual Property Rights", but excluding Section 9.1 and 9.3), Section 10 ("Confidential Information"), Section 12.6 ("Effect of Termination"), this Section 12.7 ("Survival"), Section 14.2 ("Warranty Disclaimer"), Section 15.1 (“Indemnification By Company”), Section 16 ("Limitation of Liability"), and Section 17 ("General Terms"), any unpaid accrued payment obligations, and all other provisions by their sense or context are intended to survive will survive notwithstanding the expiration or termination of this Agreement.
13. Interoperability Requirements. Company shall maintain the functional operation of all of Company’s mobile devises, websites, workstations, networks and Internet connections necessary to ensure proper operation of the Subscription Services, including without limitation installation and operation of any associated operating system and web browser according to applicable manufacturer specifications and recommendations. The communications and network interoperability for the Subscription Services require a high-speed Internet connection, modern web browser, modern smartphone and modern computer as described in here.
14. Warranties; Disclaimers.
14.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power and authority to enter into this Agreement and to perform its respective obligations hereunder; (ii) the obligations undertaken by such party have been authorized by all necessary action, corporate and otherwise; and (iii) the persons whose signatures appear on the execution page of each Order Form or SOW have been duly authorized to enter into this Agreement and the relevant Order Form or SOW on behalf of the party they represent. Booker represents and warrants that it will provide the Subscription Services and Professional Services in a professional and workmanlike manner consistent with general industry standards reasonably applicable to the provision thereof and that during each Subscription Term the Applications and Subscription Services will perform substantially in accordance with the Documentation under normal use and circumstances.
14.2. Warranty Disclaimers. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 14.1, BOOKER MAKES NO OTHER WARRANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE BOOKER PROPERTIES, BOOKER MATERIALS OR ANY BOOKER TECHNOLOGY. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BOOKER DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE BOOKER PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE BOOKER PROPERTIES WILL MEET COMPANY'S OR PURCHASERS' REQUIREMENTS OR EXPECTATIONS, OR (C) THE BOOKER PROPERTIES OR THE BOOKER TECHNOLOGY THAT MAKE THE SUBSCRIPTION SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 14.1 ABOVE, THE BOOKER PROPERTIES, BOOKER MATERIALS AND ALL BOOKER TECHNOLOGY IS PROVIDED TO COMPANY STRICTLY ON AN "AS IS" BASIS. ALL IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY BOOKER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15. Mutual Indemnification.
15.1. By Company. Company will defend Booker, its officers, directors, employees, and agents, data aggregators and publishers and pay all costs, damages, settlement amounts and expenses (including attorneys' fees and costs) awarded by a court of competent jurisdiction that arises out of or in connection with any third party claim: (i) alleging that the Company Data, Company Materials, Company Marks, or Company Deliverables infringes the intellectual property rights, or rights of privacy or publicity, of a third party or violate applicable law; or (ii) which results from any dispute between Company and Purchaser, or Company and its suppliers or other third parties, or Company’s breach of Section 5 above, including in connection with the Commercial Offerings, without regard for the basis of such claim. The foregoing indemnification obligations apply provided that Booker or data aggregator or publisher: (a) gives written notice of the claim promptly to Company; (b) gives Company sole control of the defense and settlement of the claim (provided that Company may not settle or defend any claim unless Company unconditionally releases Booker of all liability and such settlement does not adversely affect Booker's business or Subscription Services); (c) provides to Company all available information and assistance; and (d) has not compromised or settled such claim. The indemnity set forth in this Section constitutes Company's sole and exclusive obligation, and Booker's sole and exclusive remedy in connection with any third party claims arising in connection with this Agreement.
15.2. By Booker. Booker will defend Company, its officers, directors, employees, and agents and pay all costs, damages, settlement amounts and expenses (including attorneys' fees and costs) awarded by a court of competent jurisdiction that arises out of or in connection with any third party claim alleging that the Applications or Subscription Services directly infringe a U.S. patent of a third party. The foregoing indemnification obligation applies provided that Company: (a) promptly gives written notice of the claim to Booker; (b) gives Booker sole control of the defense and settlement of the claim (provided that Booker may not settle or defend any claim unless it unconditionally releases Company of all liability); (c) provides to Booker all available information and assistance; and (d) has not compromised or settled such claim. Without limiting Booker's defense obligations, if Booker determines that use of the Applications or Subscription Services may give rise to an infringement claim, Booker will have the right, but not the obligation, at its sole option, to (1) procure the right for Company to use the Applications or Subscription Services, (2) modify the Applications or Subscription Services so that they are no longer infringing, or (3) terminate this Agreement, upon written notice to Company, and reimburse Company for pro-rata pre-paid Subscription Services fees for the remainder of the Subscription Term, measured from the date of unavailability of the Application or Subscription Services to Company as a result of the alleged infringement. The indemnity set forth in this Section constitutes Booker's sole and exclusive obligation, and Company's sole and exclusive remedy in connection with any third party claims arising in connection with this Agreement.
16. Limitation of Liability.
16.1. Limitation on Direct Damages. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM COMPANY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, PROVIDED THAT THE FOREGOING LIMITATION WILL NOT RELIEVE COMPANY FROM PAYING ANY AMOUNTS OWED TO BOOKER, EVEN IF COMPANY OWES MORE THAN THE AMOUNT OF THE LIMITATION.
16.2. Exclusion of Indirect Damages. IN NO EVENT WILL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.3. Limited Liability for Payment Information. BOOKER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY THE TRANSMISSION OF PAYMENT INFORMATION PRIOR TO ITS ENCRYPTION AND RECEIPT BY BOOKER’S SERVERS. BOOKER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RESULTING DIRECTLY OR INDIRECTLY FROM COMPANY’S, USERS’ OR PURCHASERS’ HANDLING OF PAYMENT INFORMATION. BOOKER STRONGLY RECOMMENDS THAT COMPANY FOLLOWS THE REQUIREMENTS OF THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (AS DESCRIBED AT WWW.PCISECURITYSTANDARDS.ORG, AS MAY BE UPDATED FROM TIME TO TIME) WHEN HANDLING PAYMENT INFORMATION.
17. General Terms.
17.1. Export Control. Company agrees, in connection with Company's use of the Application and the Subscription Services, to comply with all applicable export and re-export laws and regulations. Booker makes no representation that the Application or Subscription Services is appropriate, will comply with applicable laws, or is available for use in locations other than the United States of America.
17.2. Staffing. Booker is responsible for all staffing decisions with respect to its personnel and the provision of any services under this Agreement, and retains the right to remove or replace any of its personnel assigned to perform any services under this Agreement. Booker may subcontract the performance of either the Subscription Services or Professional Services in its sole discretion, provided that Booker will remain liable for the performance of such subcontractors to the same extent Booker is liable for the same under this Agreement.
17.3. Notice. Any notices provided by Booker under this Agreement may be delivered to you within the Subscription Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from Booker through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to Booker under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to MINDBODY, Inc., Attn: MINDBODY Customer Support, 4051 Broad Street, Suite 220 San Luis Obispo, CA 93401, with a copy to MINDBODY, Inc., Attn: MINDBODY Legal Department, 4051 Broad Street, Suite 220 San Luis Obispo, CA 93401.
17.4. Assignment; Change in Control. This Agreement may be assigned without consent by either party to (i) a parent, affiliate, or subsidiary, (ii) an acquirer of all or substantially all assets, or (iii) a successor by merger or other corporate combination. Any actual or proposed change in control of Company that results or would result in a direct competitor of Booker or any of its affiliates directly or indirectly owning or controlling fifty percent (50%) or more of Company will entitle Booker to terminate this Agreement immediately upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17.5. Arbitration; Class Action Waiver. COMPANY AGREES THAT ALL DISPUTES BETWEEN COMPANY AND BOOKER (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO COMPANY’S RELATIONSHIP WITH BOOKER, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND COMPANY AND BOOKER HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT COMPANY HAS IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE BOOKER’S INTELLECTUAL PROPERTY RIGHTS, BOOKER MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT COMPANY AND BOOKER WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Company may bring claims only on Company’s own behalf. Neither Company nor Booker will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. COMPANY IS GIVING UP COMPANY’S RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM COMPANY MAY HAVE AGAINST BOOKER INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. Company also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Booker is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Company or Booker can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Booker Properties or this Agreement must be filed within one (1) year after such claim of action arose or be forever banned. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 16.5 will be null and void. This Section 16.5 will survive the termination of this Agreement.
17.6. Governing Law. This Agreement is governed by New York state law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement is subject to the exclusive jurisdiction of the state and federal courts located in New York, New York and Company agrees not to assert any defense that an action brought in such jurisdiction is in an inconvenient forum.
17.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
17.8. Independent Contractor Relationship. Each of the parties are independent contractors and have no power or authority to bind the other party or to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. No joint venture, partnership, employment, or agency relationship exists between Company and Booker as a result of this Agreement or use of the Application or receipt of the Subscription Services or Professional Services.
17.9. Waiver. The failure of one party to enforce any right or provision in this Agreement does not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. No waiver of any breach of this Agreement, and no course of dealing between the parties, may be construed as a waiver of any subsequent breach of this Agreement.
17.10. Entire Agreement. This Agreement, together with each applicable Order Form or SOW, as applicable, comprises the entire agreement between Company and Booker and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No text or information set forth on any other purchase order, preprinted form or document (other than a mutually agreed-upon Order Form or SOW, if applicable) will add to or vary the terms and conditions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of an Order Form or SOW, the terms of the Order Form or SOW prevail.
17.11. Reference. Company acknowledges and agrees that Booker may publicly disclose the fact that Company is a Booker customer, as well as the edition of the Applications that Company is using. Any other public communications concerning the parties' relationship created by virtue of this Agreement will require the mutual review and approval of the parties.
17.12. Interpretation. The parties participated in the drafting of this Agreement and, in the event that any dispute arises in the interpretation or construction of this agreement, no presumption will arise that either one party or the other drafted this Agreement. The language in all parts of this Agreement will in all cases be construed and interpreted solely and exclusively in the English language. Any translation of the text hereof is solely for Company's convenience or reference and is not legally enforceable.
17.13. Force Majeure. Neither party is responsible for any failure to perform due to unforeseen circumstances or to causes beyond its control, including but not limited to (i) acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or (ii) failures of telecommunications or electrical power supplies, network intrusions or denial of service attacks, other computer, Internet service provider or hosting facility failures or delays involving hardware, software or systems not within Booker's or its service providers' possession or reasonable control or that are not reasonably preventable by Booker or its service providers (a "Force Majeure Condition"); provided however, economic inability to satisfy a payment obligation is not a Force Majeure Condition. A party whose performance is affected by a Force Majeure Condition is excused from such performance to the extent required by the Force Majeure Condition so long as such party takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed.
17.14. Counterparts; Electronic Signatures. Each Order Form or SOW constituting this Agreement may be executed in one or more counterparts, each of which is deemed an original, and all of which together constitute one and the same instrument. An electronic (scanned) copy of the executed Order Form or SOW constitutes an original copy. The parties agree that each Order Form or SOW may be signed electronically, and that the electronic execution of this Agreement will bind the executing party to the terms hereof. Neither party may challenge the validity of this Agreement or any Order Form or SOW as a result of the use of electronic signatures.
17.15. Modification. We may revise this Agreement from time to time, and will always post the most current version on our website. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your account, posting on our blog or on this page). By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised Terms.