End User License Agreement
StylesCloud Corporation End User License Agreement (this “EULA”)
(Last Updated March 23, 2018)
IMPORTANT - READ CAREFULLY BEFORE USING THE STYLESCLOUD APPLICATION, THE MYCUE BUSINESS APPLICATION, OR THE MYCUE APPOINTMENTS APPLICATION (COLLECTIVELY, THE “APP”).
This is a legal agreement between you and StylesCloud Corporation (referred to herein as “StylesCloud”, “we” and/or “us”). By checking the box adjacent to the phrase “I agree with the license and conditions of the StylesCloud App” or by using the App you acknowledge that you have read, understand, and agree to be bound to the terms and conditions of this EULA.
1. Ownership of the App. StylesCloud is the owner of the App and retains all right, title, and interest in and to the App. The App is licensed, not sold, to you. Any rights to the App not expressly granted under this Section 1 are reserved by StylesCloud.
2. Grant of License. Subject to the terms and conditions of this EULA, StylesCloud grants to you a personal, non-exclusive, limited, non-transferable, non-sublicensable, revocable license, during the term of this EULA, to execute the App on a smartphone or tablet PC, or other authorized device belonging to you or in your possession and to use the App while it is so being executed.
If the App is provided to you through the Apple Inc. (“Apple”) App Store, you further agree that your use is also limited to that which is permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
You acknowledge that the App may contain copyrighted software of third parties which are obtained under a license from such parties (“Third Party Software”). A list of such Third Party Software is available here. All third party licensors retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation an end user license agreement.
3. Services. The App may only be used to access and use the StylesCloud’s mobile and internet-based services, and use of the App is subject to and conditioned on your acceptance of the StylesCloud Terms of Service for Clients and Professionals at: https://www.mycueapp.com/legal/terms. The StylesCloud Terms of Service are incorporated herein by reference and are binding on you.
4. Restrictions. The right to use the App is not without restriction. In particular, you may not: (a) distribute, transmit, transfer, assign, rent, lease, sell or otherwise dispose of the App to any third party; (b) use the App in any time sharing arrangement or otherwise make the App available via a network so that it can be used on several devices at the same time; (c) unless otherwise expressly permitted by the functionality of the App, alter, modify, repair, rent, lease, loan, sell, distribute, or create derivative works based on the App; (d) reverse engineer, decompile, disassemble, or attempt to derive the source code of the App except to the extent such activities cannot be prohibited by applicable law; (e) use the App in an illegal, harmful, offensive, or abusive manner as determined by StylesCloud, including, but not limited to, by: (i) trespassing or burdening network capacity, or by violating the security or integrity of any network, computer or communications system, software application, network or computing device, (ii) infringing or violating the rights of any other party, or (iii) using the App in a way to avoid incurring fees or exceeding usage limits or quotas as specified by StylesCloud; (f) use the App for any purpose that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (g) violate the security of the App or attempt to gain unauthorized access to the App or any information, data, or content of StylesCloud or other users of the App through hacking, password mining, or any other means; or (h) assist any third party to engage in any of the foregoing activities. StylesCloud is not in any way responsible for any such unauthorized use by you. You agree to notify StylesCloud immediately upon becoming aware of any activity in violation of this Section 4.
5. Connectivity; Technical Requirements. An Internet connection is required to use the App. To control connection costs, we recommend using WiFi or a flat-rate data plan for mobile use of the App. You bear the responsibility for correct and proper installation (by your installer, for example) and connection to the Internet. Further technical requirements for using the App, in particular with regard to which operating systems/versions and devices are supported, are set out in the App’s documentation.
6. Updates; Support. StylesCloud reserves the right to provide updates, new versions, and revisions, and make changes, corrections, and/or improvements (collectively, “Updates”) to: (a) the App; and (b) this EULA, in both cases at any time without notice or liability, provided that we will endeavor to provide you with notice of any material changes to this EULA. You are bound by any such Updates to this EULA and should therefore periodically review the then current terms and conditions to which you are bound. StylesCloud also reserves the right to discontinue licensing the App at any time without notice and without liability. Updates may, at the option of StylesCloud, only be made available online, and the App may automatically attempt to download and/or install any Updates. StylesCloud shall have no liability whatsoever arising from your failure or inability to access, install, or use any Updates provided to you.
StylesCloud is under no obligation to provide any Updates, and is under no obligation to correct any bugs or errors in the App or to otherwise provide support for the App. Nevertheless, should StylesCloud elect to provide you with any support, such support will be for your convenience only.
8. Term; Termination. This EULA is effective the day you install the App on your device. Either party may terminate this EULA, with or without cause, at any time. This EULA will terminate automatically, with or without prior notice, if you fail to comply with any provision of this EULA. StylesCloud also reserves the right to remove, suspend or disable your access to, and/or modify the App in the event you violate this EULA. Upon termination, you must destroy your copy of the App, including any full or partial copies thereof, in your possession, and all licenses granted to you herein shall immediately terminate. Sections 9, 10, 11, and 13-18, and this Section 8 will survive any termination or expiration of this EULA.
9. Warranty. The App is intended for general information purposes only. THE APP IS PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS BASIS.” STYLESCLOUD MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, POSSIBILITY OF USE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion may not apply to you.
YOUR USE OF THE APP IS AT YOUR SOLE RISK. YOU ARE FULLY AND SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS AND YOU AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO TAKE REASONABLE PRECAUTIONS IN ALL ACTIONS AND INTERACTIONS WITH OTHER PROFESSIONALS AND CLIENTS AND IN THE PROVISION OR RECEIPT OF BEAUTY AND WELLNESS SERVICES. STYLESCLOUD IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE APP. STYLESCLOUD IS UNDER NO OBLIGATION TO, AND DOES NOT ROUTINELY, SCREEN ITS USERS, INQUIRE INTO THE BACKGROUND OF ITS USERS OR ATTEMPT TO VERIFY INFORMATION PROVIDED BY ANY USER. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS. PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON OR THROUGH THE APP OR RELEASE TO OTHERS. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER PARTICIPANTS OR USERS.
IT IS POSSIBLE FOR OTHERS TO OBTAIN PERSONAL INFORMATION ABOUT YOU DUE TO YOUR USE OF THE APP, AND THAT THE RECIPIENT MAY USE SUCH INFORMATION TO HARASS OR INJURE YOU. WE ARE NOT RESPONSIBLE FOR THE USE OF ANY PERSONAL INFORMATION THAT YOU DISCLOSE ON OR THROUGH THE APP. YOU UNDERSTAND THAT IN USING THE APP SENSITIVE INFORMATION MAY TRAVEL THROUGH THIRD-PARTY INFRASTRUCTURE THAT IS NOT UNDER STYLESCLOUD’S CONTROL (SUCH AS THIRD-PARTY SERVERS). STYLESCLOUD MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURE.
STYLESCLOUD MAKES NO WARRANTY THAT (I) THE APP WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE APP WILL BE CORRECTED, OR (IV) THAT THE APP OR ANY SERVER THROUGH WHICH YOU ACCESS THE APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
STYLESCLOUD MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SUITABILITY, RELIABILITY, TIMING, DURABILITY, LEGALITY, OR ANY OTHER ASPECT OF BEAUTY AND WELLNESS SERVICES OFFERED OR PROVIDED BY PROFESSIONALS OR REQUESTED BY CLIENTS THROUGH USE OF THE APP WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS OR ABOUT THE ACCREDITATION, REGISTRATION OR LICENSE OF ANY PROFESSIONAL.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STYLESCLOUD OR THROUGH OR FROM THE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS EULA.
If you obtained the App through the Apple App Store, then, in the event of any failure of the App to conform to any applicable warranty provided above, you may notify Apple and Apple will refund the purchase price for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the StylesCloud’s sole responsibility.
10. Liability Limitation. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL STYLESCLOUD OR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS AND DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF STYLESCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE APP; (II) BEAUTY AND WELLNESS SERVICES FACILITATED BY THE APP OR ANY INTERACTIONS BETWEEN USERS, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY) OR ANY DISPUTE WITH ANY USER; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APP; (IV) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF THE APP OR YOUR DATA OR TRANSMISSIONS; OR (V) ANY OTHER MATTER RELATING TO THE APP. IN THE EVENT THE FOREGOING LIMITATION IS NOT ENFORCEABLE, STYLESCLOUD’S TOTAL, CUMULATIVE LIABILITY TO YOU ARISING FROM OR RELATED TO THIS EULA, THE APP IS LIMITED TO FIFTY DOLLARS ($50). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. Certain jurisdictions do not permit the limitation or exclusion of incidental damages, so this limitation may not apply to you. StylesCloud also assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect your device or other property on account of your access to or use of the App.
11. Indemnification. You are responsible for all use of the App and related services. You agree to defend, indemnify and hold harmless StylesCloud and its affiliates, officers, directors, employees, agents, partners and licensors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including but not limited to attorney’s fees) arising from or relating to: (i) your use of and access to the App; (ii) services facilitated by the App or any interaction between you and another user; (iii) your violation of any term of this EULA; (iv) your violation of any rights of a third party, including without limitation any copyright, intellectual property, defamation, libel, unfair competition, or privacy right; (v) your negligence, willful misconduct, or fraud; or (vi) any third-party claims or damages relating to death, personal injury or emotional distress arising from or related to use of the App.
12. Legal Compliance. You agree that you will comply with all applicable laws and regulations when using the App, including but not limited to the export laws and regulations of the United States. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
13. Arbitration. THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. THEY AFFECT EACH PARTY’S RIGHTS CONCERNING THE RESOLUTION OF ANY “DISPUTE” (DEFINED BELOW) BETWEEN THE PARTIES/
(a) Informal Negotiations. To expedite resolution and the cost of any dispute, controversy or claim between you and StylesCloud related to any dispute or controversy arising from or relating to this EULA or the enforcement of any provision of this EULA (a “Dispute”), you and StylesCloud agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (in each case, a “Notice”). Your address for such Notices is your billing address, with an email copy to the email address you have provided to StylesCloud. StylesCloud’s address for such notices is: StylesCloud Inc., Attention: Legal, 20601 3rd St., Saratoga, CA 95070 or by email to email@example.com. Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from StylesCloud must include pertinent account information, a brief description of the Dispute, and StylesCloud’s contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary
(b) Mandatory Binding Arbitration and Class Action/Jury Trial Waiver. IF YOU AND STYLESCLOUD ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, YOU AND STYLESCLOUD AGREE THAT EITHER YOU OR STYLESCLOUD MAY ELECT TO HAVE THE DISPUTE (EXCEPT THOSE DISPUTES EXPRESSLY EXCLUDED BELOW) FINALLY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION. ANY ELECTION TO ARBITRATE BY ONE PARTY WILL BE FINAL AND BINDING ON THE OTHER. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website https://www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share or arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If such costs are determined by the arbitrator to be excessive, StylesCloud will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in these Terms of Service, you and StylesCloud may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
(c) Exceptions to Alternative Dispute Resolution. You and StylesCloud agree that the following Disputes are not subject to the above provisions concerning information negotiations and binding arbitration: (1) any suit to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any suit to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed, or (3) any claim related to actual or threatened infringement, misappropriation or violation of a Party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. In addition, either you or StylesCloud may assert claims, if they qualify, in small claims court in Santa Clara County, California or any United States county where you live or work.
(d) Waiver of Right to be a Plaintiff or Class Member in a Purported Class Action or Representative Proceeding. You and StylesCloud agree that any arbitration will be limited to the Dispute between StylesCloud and you individually. TO THE FULL EXTENT PERMITTED BY LAW, (1) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (2) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (3) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
(e) Location of Arbitration. Arbitration will take place in Santa Clara County, California. You and StylesCloud agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the California state and Federal courts located in Santa Clara County, California have exclusive jurisdiction and you and StylesCloud agree to submit to the venue the personal jurisdiction of such courts.
(f) Right to Opt out of Arbitration and Class Action/Jury Trial Waiver. You may opt out of the foregoing arbitration and class action/jury trial waiver provision of these Terms of Service by NOTIFYING STYLESCLOUD IN WRITING WITHIN 30 DAYS OF THE DATE YOUR FIRST REGISTERED FOR THE APP OR 30 DAYS FROM THE DATE THESE TERMS OF SERVICE WERE LAST UPDATED. To opt out, you must send a written notification to StylesCloud Inc, Attention: Legal, 20601 3rd St., Saratoga, CA 95070 that includes (i) your user identification, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver sections.
14. Applicable Law and Jurisdiction
Except as expressly provided otherwise, this EULA is governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Judicial proceedings (other than small claims actions) that are excluded from the agreement to arbitrate in Section 13 must be brought in state or federal court in, or closest to, Santa Clara County, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction there. You and StylesCloud both agree to waive their right to a jury trial.
15. Third Party Beneficiaries. If you downloaded the App from the Apple App Store, then you acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as third party beneficiaries hereof.
16. Provisions Concerning Apple. If you downloaded the App from the Apple App Store, then StylesCloud and you each acknowledge and agree that: (a) this EULA is between the StylesCloud and you alone, and that Apple is not a party to this EULA and that, as between Apple and StylesCloud, StylesCloud is solely responsible for the App; (b) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (c) StylesCloud, and not Apple, is responsible for addressing any claims by you or a third party relating the App or to your possession or use of the App, including, but not limited to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation; and (d) in the event of any third party claim that the App or your possession and use of the App infringes a third party’s intellectual property rights, as between Apple and StylesCloud, StylesCloud will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(a) Entire Agreement. Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, this EULA constitutes the entire agreement between StylesCloud and you pertaining to the subject matter hereof and supersedes all prior agreements and understanding between the parties.
(b) Customer Relationship. No joint venture, partnership, employment, or agency relationship exists between you and StylesCloud as a result of this EULA or your use of the App.
(c) Severability. If any provision of this EULA is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
(d) Waiver. StylesCloud’s failure to enforce any right or provision in this EULA will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in this EULA, the exercise by either party of any of its remedies under this EULA will be without prejudice to its other remedies under this EULA or otherwise permitted under law.
(e) Assignment. You may not assign, transfer or delegate this EULA and your rights and obligations hereunder without StylesCloud’s prior written consent. StylesCloud may without restriction assign, transfer or delegate this EULA and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this EULA at any time remains unaffected.
(f) Headings. The headings contained in this EULA are intended for convenience or reference and shall not affect the meaning or interpretation of this EULA.
18. Contact Information. Should you have questions about the terms and conditions of this EULA or if you desire to contact StylesCloud for any reason (including, but not limited to legal correspondence; any questions or comments about the App; your rights of access, rectification, erasure, and restriction; or to report any problems, bugs, or other errors), please contact StylesCloud at: