THESE TERMS AND CONDITIONS (“Agreement” or “Terms”) are made and entered into by and, between you (“you” or “your”) and ZOILAH, LLC, a Florida limited liability company ("Zoilah", “Company, “we,” “us,” or “our”) with corporate offices at 1900 N. Bayshore Drive, Suite 1A, Miami, Florida, establishing terms and conditions under which you will submit information to and receive Services from Zoilah, via our Site and Application, as further defined herein.
THE APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH PROFESSIONALS, SPECIALISTS AND REGULAR WORKERS MAY CREATE LISTINGS FOR SERVICES AND USERS MAY LEARN ABOUT AND BOOK THOSE SERVICES DIRECTLY WITH THE PROFESSIONALS, SPECIALISTS AND REGULAR WORKERS. YOU UNDERSTAND AND AGREE THAT ZOILAH IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN SERVICES AND WHOMEVER RECEIVES THE SERVICE, NOR IS ZOILAH DIRECTLY LINKED TO THE SERVICES, NOR AN AGENT OR INSURER. ZOILAH HAS NO CONTROL OVER THE CONDUCT OF SERVICES, CLIENTS, USERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY APPOINTMENTS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
FURTHERMORE, PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH ZOILAH ARE RESOLVED. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
What We Do
The Site, Application and Services can be used to facilitate the listing and booking of any kind of Service that is offered on appointment basis ("Appointments"). Such Services are included in Listings on the Site, Application and Services by Service Providers. You may view Listings as an unregistered visitor to the Site, Application and Services; however, if you wish to book an Appointment or create a Listing, you must first register to create a Zoilah Account, as defined below.
As stated above, Zoilah combines an online platform or marketplace with related technology for Service Clients and Service Providers to meet online and arrange for bookings of Appointments directly with each other. Zoilah is not an owner or operator of Services or Listings of any sort, nor any kind of Appointments, nor is it a provider of Service or Listings of any sort, nor any kind of Appointments and Zoilah does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control Services, Services or Listings of any sort, nor any kind of Appointment or transportation or travel services. Unless explicitly specified otherwise in the Zoilah platform, Zoilah's responsibilities are limited to: (i) facilitating the availability of the Site, Application and Services and (ii) serving as the limited payment collection agent of each Service for the purpose of accepting payments from Service Clients on behalf of the Service Providers.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE SERVICE PROVIDERS AND SERVICE CLIENTS CONNECTING AND BOOKING APPOINTMENTS DIRECTLY WITH EACH OTHER. ZOILAH CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY SERVICE AND ITS APPOINTMENTS.
ZOILAH IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND APPOINTMENTS. ACCORDINGLY, ANY BOOKINGS WILL BE MADE OR ACCEPTED AT THE MEMBER'S OWN RISK.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
General Key Terms
"Appointment Request Period" means the time period starting from the time when an appointment is requested by a Service Client (as determined by Zoilah in its sole discretion), within which a Service may decide whether to confirm or reject that appointment request, as stated on the Site, Application or Services. Different Appointment Request Periods may apply in different places.
"Collective Content" means Member Content and Zoilah Content.
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Service Client" means a Member who requests from a Service a booking of an Appointment via the Site, Application or Services, or a Member who schedules an Appointment and is not who offers such Service.
"Service Provider" means a Member who creates a Listing via the Site, Application and Services.
"Service Location" means the physical location where a Non-Domicile Service is offered.
"Domicile Service" means a service that is offered at a location requested by the Service Client.
"Listing" or "Service" means a Service that is listed by a Service Provider as available for appointment booking via the Site, Application, and Services.
"Member" means a person who completes Zoilah's account registration process, including but not limited to Service Providers and Service Clients, as described under "Account Registration" below.
"Member Content" means all Content that a Member posts, uploads, publishes, submits, transmits, or includes in their Listing or Member profile to be made available through the Site, Application or Services
"Tax" or "Taxes" mean any taxes of any sort that the Serivice Providers may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
"Zoilah Content" means all Content that Zoilah makes available through the Site, Application, or Services, including any Content licensed from a third party, but excluding Member Content.
Modifications to Our Terms & Conditions
Zoilah reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will either post the modification on the Site or via the Application or otherwise provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
In order to access certain features of the Site and Application, and to book an Appointment or create a Listing, you must register to create an account ("Zoilah Account") and become a “Member”. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites ("SNS") (including, but not limited to, Facebook, LinkedIn, Twitter or Instagram; each such account, a "Third-Party Account"), via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your Zoilah Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to Zoilah through the Site, Services or Application; or (ii) allowing Zoilah to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Zoilah and/or grant Zoilah access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Zoilah to pay any fees or making Zoilah subject to any usage limitations imposed by such third-party service providers. By granting Zoilah access to any Third-Party Accounts, you understand that Zoilah will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Site, Services and Application via your Zoilah Account and Zoilah Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your Zoilah Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or Zoilah's access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Zoilah Account and your Third-Party Accounts, at any time, by accessing the "Settings" section of the Site and Application.
PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS.
Zoilah makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and Zoilah is not responsible for any SNS Content. Your Zoilah Account and your Zoilah Account profile page will be created for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Zoilah Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Zoilah reserves the right to suspend or terminate your Zoilah Account and your access to the Site, Application and Services if you create more than one (1) Zoilah Account, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Zoilah Account, whether or not you have authorized such activities or actions. You will immediately notify Zoilah of any unauthorized use of your Zoilah Account.
As a Member, you may create Listings, as defined above. To create a Listing, you will be asked a variety of questions about the Service to be listed, including, but not limited to, the location, capacity, description, features, working hours, and availability of the Service and pricing and related rules and financial terms. Listings will be made publicly available via the Site, Application and Services. Other Members will be able to book your Services via the Site, Application and Services based upon the information provided in your Listing. You understand and agree that once a Service Client requests a booking of your Service, you may not request the Service Client to pay a higher price than in the booking request.
You acknowledge and agree that you alone are responsible for any and all Listings and Member Content you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or a Service Client receives, an Appointment in a Listing you post (i) will not breach any agreements you have entered into with any third parties, and (ii) will (a) be in compliance with all applicable laws (any kind of laws regulating the services you are listing/offering), Tax requirements, and rules and regulations that may apply to any Service included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that Zoilah assumes no responsibility for a Service Provider’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Zoilah reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Zoilah, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Site, Application or Services.
If you are a Service Provider, you understand and agree that Zoilah does not act as an insurer or as your contracting agent. If a Service Client requests a booking of your Service, whether it be a Domicile Service or a Standard Service, and receives the Service you provide, any agreement you enter into with such Service Client is between you and the Service Client and Zoilah is not a party to it. Notwithstanding the foregoing, Zoilah serves as the limited authorized payment collection agent of the Service Provider for the purpose of accepting, on behalf of the Service Provider, payments from Service Clients of such amounts stipulated by the Service Provider (including additional fees or “extras” to the Service or other fees and/or Taxes).
When you create a Listing, you may also choose to include certain requirements which must be met by the Members who are eligible to request a booking of your Service, such as requiring Members to have a profile picture or verified phone number, in order to book your Service. Any Member wishing to book Appointments included in Listings with such requirements must meet these requirements. More information on how to set such requirements is available on the Site.
If you are a Service Provider, Zoilah makes certain tools available to you to help you to make informed decisions about which Members you choose to confirm for booking for your Service. You acknowledge and agree that, as a Service Provider, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who enter at or are otherwise present at the Service at your request or invitation, excluding the Service Client (and the individuals the Service Client invites to the Service, if applicable.)
Zoilah recommends that Service Providers obtain appropriate insurance for their Services, including but not limited to commercial general liability insurance. Please review any insurance policy that you may have for your Service carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Service Clients (and the individuals the Service Client invites to the Service, if applicable) while at your Service Location.
Zoilah may offer Service Providers the option of having photographers take photographs of their Services and Service Location(s). If you as a Service Provider choose to have a photographer do this, the photographs taken will be made available to you to include in your Listing with a watermark or tag bearing the words "Zoilah Verified Photo" or similar wording (each a "Verified Image(s)"). You agree that you alone are responsible for ensuring that your Listing is accurately represented in the Verified Images. You alone are responsible for using the Verified Images and you warrant that you will cease to use the Verified Images or any other images if such images cease to accurately represent your Listing. All images, materials and content created by these photographers, including Verified Images, constitute Zoilah Content, regardless of whether you include them in your Listing. You agree that Zoilah may use the Verified Images for advertising, marketing, commercial and other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation.
Zoilah does not endorse any Member or any Service. You understand that Verified Images are intended only to indicate a photographic representation of the Service at the time the photograph was taken. Verified Images are therefore not an endorsement by Zoilah of any Member or any Service. Members are required by these Terms to provide accurate information, and although Zoilah may undertake additional checks and processes designed to help verify or check the identities, licenses or professional backgrounds of users, we do not make any representations about, confirm, or endorse any Member or the Member's purported identity, background or licensure required to provide a particular Service.
Any references in the Site, Application or Services to a Member being "verified" or "connected" (or similar language) only indicate that the Member has completed a relevant verification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Zoilah about any Member, including of the Member's identity and whether the Member is trustworthy, safe, suitable or holds any particular licensure with any local, state or federal authority or private regulatory body. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Site, Application and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to use a Service Provider or to accept a booking request from a Service Client, or to have any other interaction with any other Member. We are not responsible for any damage or harm resulting from your interactions with other Members.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Zoilah with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by a Service Provider against Zoilah regarding the remittance of payments received from a Service Client by Zoilah on behalf of a Service Provider, which instead shall be subject to the limitations described in the section below entitled "Limitation of Liability".
Bookings and Financial Terms
"Service Client Fees" means the amounts that are due and payable by a Service Client in exchange for receiving a Service. The Service Provider alone, and not Zoilah, is responsible for the Service Fees for his or her Listing. The Service Provider may in his or her sole discretion decide to include in these amounts (i) additional fees permitted on the Zoilah platform, or (ii) Taxes that the Service Provider determines that he or she has to collect.
"Transaction Fees" means the fee that Zoilah charges a Service Client for the use of the Services, which is may be a fixed fee or calculated as a percentage of the applicable Service Fees. The Service Client Fees will be displayed to the Service Client when the Service Client is asked whether to send a booking request to a Service Provider.
"Service Provider Fees" means the fees that Zoilah charges a Service Provider to pay for the credit or debit card transaction costs for the use of the Services, which is calculated as a percentage of the total fees being charged, plus a fixed cost. The Service Provider Fees will be displayed to the Service Provider when the Service Provider is asked whether to confirm or reject a booking request from a prospective Service Client.
"Service Fees" means collectively the Service Client Fees and the Service Provider Fees.
"Total Fees" means collectively the Service Client Fees, the Transaction Fees and the Service Client Fees plus any Taxes.
Bookings and Financial Terms for Service Providers and Service Clients
If you are a Service Provider and a booking is requested for your Service via the Site, Application or Services, you will be required to either confirm or reject the booking request within the Booking Request Period, otherwise the booking request will automatically expire. When a booking is requested via the Site, Application or Services, we will share with you (i) the first and last name of the Service Client who has requested the booking, (ii) a link to the Service Client's Zoilah Account profile page, (iii) if the Service Client and Service Provider have both connected their Zoilah accounts to SNS, the names of any members of an SNS with whom you are "friends" or associated on the SNS if such individuals are also "friends" or associated with the Service Client on such SNS, and (iv) an indication of whether or not the Service Client has provided other information to Zoilah, such as a verified email address, connection to SNSs, or a government ID. If you are unable to confirm or decide to reject a booking request within the Booking Request Period, any amounts collected by Zoilah for the requested booking will be refunded to the applicable Service Client's credit or debit card and any pre-authorization of such credit card will be released. When you confirm a booking requested by a Service Client, Zoilah will send you an email, text message or message via the Application confirming such booking, depending on the selections you make via the Site, Application and Services.
Zoilah will collect the Total Fees at the time of booking confirmation (i.e. when the Service Provider confirms the booking request) and will initiate payment of the Service Fees (less Zoilah's Service Provider Fees and any Taxes in respect of the Service Provider Fees, such as Sales Tax in the United States and VAT in the European Community) to the Service Provider within (i) within the United States of America, 24 hours, (ii) every Monday on weekly basis, of when the Service Client arrives at the applicable Service (except to the extent that a refund is due to the Service Client) . Refunds may only be considered if Service Client submits a complaint with Zoilah within the 24 hours after the service was scheduled (“Complaint”). Service Clients are entitled to submit timely Complaints only in circumstances where the Services were never rendered or in instances where rendered Services were proven unsatisfactory. Zoilah reserves the right in its sole and absolute discretion, to determine the satisfactory or unsatisfactory performance of Services. If Service Client does not submit a Complaint in accordance with these Terms & Conditions and within the allotted 24 hours from scheduled service, Service Client waives any and all rights to submit a Complaint and to receive a refund. The time it takes for the Service Provider to receive payouts may depend upon the payout method chosen by the Service Provider. Some methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Service Provider, including by deducting their charges from the payout amount.
If you owe or agree to pay any amount to Zoilah (whether as a result of your bookings or actions as a Service Client or otherwise), then Zoilah may (but is not obliged to) withhold the amount owing to Zoilah from any payout amounts due to you as a Service Provider, and use the withheld amount to setoff the amount owed by you to Zoilah. If Zoilah does so, then your obligation to pay Zoilah will be extinguished to the extent of the amount withheld by Zoilah, and Zoilah will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld. In addition to the amount due, if your account is delinquent or you otherwise have chargebacks on your account, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees, or other third party 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 Zoilah by you. Such communication may be made by Zoilah or by anyone on its behalf, including but not limited to a third party collection agent.
Appointment of Zoilah as Limited Payment Collection Agent for Service Provider
Each Service Provider hereby appoints Zoilah as the Service Provider's limited payment collection agent solely for the purpose of accepting the Service Fees from Service Clients. Each Service Provider agrees that payment made by a Service Client through Zoilah, shall be considered the same as a payment made directly to the Service Provider, and the Service Provider will make the Service available to the Service Client in the agreed-upon manner as if the Service Provider has received the Service Fees. Each Service Provider agrees that Zoilah may, in accordance with the cancellation policy selected by the Service Provider and reflected in the relevant Listing, (i) permit the Service Client to cancel the booking and (ii) refund (via Zoilah Payments) to the Service Client that portion of the Service Fees specified in the applicable cancellation policy. Each Service Provider understands that as Zoilah accepts payments from Service Clients as the Service Provider's limited payment collection agent and that Zoilah’s obligation to pay the Service Provider is subject to and conditional upon successful receipt of the associated payments from Service Clients. Zoilah does not guarantee payments to Service Providers for amounts that have not been successfully received by Zoilah from Service Clients. In accepting appointment as the limited authorized agent of the Service Provider, Zoilah assumes no liability for any acts or omissions of the Service Provider.
Please note that Zoilah does not currently charge fees for the creation of Listings. However, you as a Service Provider acknowledge and agree that Zoilah reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that Zoilah will provide notice of any Listing fee collection via the Site, Application and Services, prior to implementing such a Listing fee feature.
Bookings and Financial Terms for Service Clients
The Service Providers, not Zoilah, are solely responsible for honoring any confirmed bookings and making available any Appointments reserved through the Site, Application and Services. If you, as a Service Client, choose to enter into a transaction with a Service Provider for the booking of a Service, you agree and understand that you will be required to enter into an agreement with the Service Provider and you agree to accept any terms, conditions, rules and restrictions associated with such Service imposed by the Service Provider. You acknowledge and agree that you, and not Zoilah, will be responsible for performing the obligations of any such agreements, that Zoilah is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Zoilah disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that Zoilah is not a party to the agreement between you and the Service Provider, Zoilah acts as the Service Provider's payment collection agent for the limited purpose of accepting payments from you on behalf of the Service Provider. Upon your payment of the Total Fees to Zoilah, your payment obligation to the Service Provider for the Service Fees is extinguished, and Zoilah Payments is responsible for remitting the Service Fees (less the Service Provider Fees and any Taxes in respect of the Service Provider Fees, such as Sales Tax in the United States and VAT in the European Community), in the manner described in these Terms. In the event that Zoilah Payments does not remit any such amounts as described in these Terms, such Service Provider’s sole remedy shall be a claim for payment of the Service Provider Fees.
The Total Fees payable will be displayed to a Service Client before the Service Client sends a booking request to a Service Provider. As noted above, the Service Provider is required to either confirm or reject the booking request within the Booking Request Period; otherwise, the requested booking will be automatically cancelled. If a requested booking is cancelled (i.e. not confirmed by the applicable Service Provider), any amounts collected by Zoilah will be refunded to such Service Client, depending on the selections the Service Client makes via the Site and Application, and any pre-authorization of such Service Client's credit card will be released, if applicable.
You as a Service Client agree to pay Zoilah for the Total Fees for any booking requested in connection with your Zoilah Account if such requested bookings are confirmed by the applicable Service Provider. In order to establish a booking pending the applicable Service Provider's confirmation of your requested booking, you understand and agree that Zoilah, on behalf of the Service Provider, reserve the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. As a general rule, Zoilah will collect the Total Fees due once Zoilah receives confirmation of your booking from the applicable Service Provider; if necessary, Total Fees may instead be collected at a later point. Please note that Zoilah cannot control any fees that may be charged to a Service Client by his or her bank related to Zoilah's collection of the Total Fees, and Zoilah disclaims all liability in this regard.
In consideration for the use of Zoilah's online marketplace and platform, Zoilah charges the Transaction Fees. Where applicable, Taxes (such as Sales Tax in the United States and Value Added Tax [“VAT”] in the European Community) may also be charged in respect of the Service Provider Fees and Service Client Fees. Zoilah deducts the Service Provider Fees from the Service Fees before remitting the balance to the Service Provider as described in these Terms. Service Client Fees are, as noted above, included in the Total Fees.
Balances will be remitted by Zoilah to Service Providers via check, PayPal, direct deposit or other payment methods, as described on the Site or via the Application, in the Service Provider's currency of choice, depending upon the selections the Service Provider makes via the Site, Application and Services. Amounts may be rounded up or down as described the "Rounding Off" section below.
Please note that Zoilah, may impose or deduct foreign currency processing costs on or from any payments or payouts by Zoilah in currencies other than U.S. dollars. More information on any such costs or deductions will be available via the Site and Application. Except as otherwise provided herein, Service Fees are non-refundable.
General Booking and Financial Terms
Cancellations and Refunds
If, as a Service Client, you cancel your requested booking before the requested booking is confirmed by a Service Provider, Zoilah will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested booking within a commercially reasonable time. If, as a Service Client, you wish to cancel a confirmed booking made via the Site, Application and Services, either prior to or after arriving at the Service, the cancellation policy of the Service Provider contained in the applicable Listing will apply to such cancellation. Our ability to refund the Service Fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Details regarding refunds and cancellation policies are available via the Site and Application. The Service Provider Fee and the Transaction Fee are non-refundable regardless of the cancellation policy selected by the Service Provider.
If a Service Provider cancels a confirmed booking made via the Site, Services, and Application, (i) Zoilah will refund the Total Fees for such booking to the applicable Service Client within a commercially reasonable time of the cancellation and (ii) the Service Client will receive an email or other communication from Zoilah containing alternative Listings and other related information. If the Service Client requests a booking from one of the alternative Listings and the Service Provider associated with such alternative Listing confirms the Service Client's requested booking, then the Service Client agrees to pay Zoilah the Total Fees relating to the confirmed booking for the Service in the alternative Listing, in accordance with these Terms. If a Service Provider cancelled a confirmed booking and you, as a Service Client, have not received an email or other communication from Zoilah, please contact Zoilah at firstname.lastname@example.org.
If, as a Service Provider, you cancel a confirmed booking, you agree that Zoilah may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee (to be withheld from your future payouts or charged to the credit card on file in your Zoilah Account). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.
In certain circumstances, Zoilah may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the Site, Application and Services. In no event shall Zoilah or any third party providers or distributors be liable for any injury, loss, claim, damage, or damages, including, but not limited to, any special, exemplary, punitive, indirect, incidental or consequential damages of any kind, whether based in contract, tort, strict liability, or otherwise, which arises out of interruptions of service caused by an act of God, terrorism, accident, fire, labor controversy, riot, civil commotion, act of public enemy, law, enactment, rule order, or act of any government or governmental instrumentality, failure of technical facilities, failure or delay of transportation facilities, illness or incapacity, or other cause of a similar or dissimilar nature not reasonably within the control of Zoilah or which Zoilah could not by reasonable diligence have avoided (each such act specified in this paragraph shall be referred to herein as a “Force Majeure Event”). If a Force Majeure Event occurs which affects any User or service hosted through the Application, Zoilah shall use reasonable efforts to communicate with the User, Service Provider and any other affected Party to reschedule the service. Zoilah shall not be responsible for reimbursing any fees paid to the Service Provider or to Zoilah unless Services were never rendered or the service provided was proven unsatisfactory, after the Service Client files a timely Complaint. Zoilah may determine, in its sole discretion, to refund to the Service Client part or all of the amounts charged to the Service Client, including but not limited to Zoilah Fees. You agree that Zoilah and the relevant Service Client or Service Provider will not have any liability for such cancellations or refunds.
If, as a Service Provider, your Service Client cancels a confirmed booking or Zoilah decides that it is necessary to cancel a confirmed booking, and Zoilah issues a refund to the Service Client in accordance with the Service Client Refund Policy or other applicable cancellation policies, you agree that in the event you have already been paid Zoilah shall be entitled to recover the amount of any such Service Client refund from you, including by subtracting such refund amount out from any future Service Fees due to you.
In some instances, Service Clients may be required to make recurring, incremental payments toward the Total Fees owed for a confirmed booking before receiving his or her Service at the applicable Service Location (collectively, "Recurring Payments"). More information on Recurring Payments will be made available via the Site, Application and Services, if applicable. If Recurring Payments apply to a confirmed booking, then the Service Client authorizes Zoilah, on behalf of the Service Provider, to collect the Total Fees and the Service Provider agrees that such Zoilah entity will initiate payouts to the Service Provider, in the increments and at the frequency associated with the applicable Recurring Payments, each as identified on the Site, Application and Services.
Zoilah or our payment processing provider, if applicable, may, in its sole discretion, round up or round down amounts that are payable from or to Service Clients or Service Providers to the nearest whole functional base unit in which the currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, Zoilah will round up an amount of $101.50 to $102.00, and $101.49 to $101.00.
Some currencies are denominated in large numbers. In those cases, Zoilah may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Zoilah to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
Some Service Providers may pledge to donate a portion of the funds they receive from confirmed bookings made via the Site, Application and Services to a particular cause or charity. We do not take any responsibility or liability for whether the Service Provider does in fact make the donation he or she pledged to make. In such cases, the Service Provider in question is responsible for his or her own compliance with all laws and regulations applicable to such pledges and/or fund-raising.
Tax regulations may require us to collect appropriate tax information from our Service Providers, or to withhold taxes from payouts to Service Providers, or both. For instance, IRS regulations stipulate that we must collect an IRS Form W-9 from our U.S. Service Providers, and an appropriate IRS Form W-8 (e.g. Form W-8BEN) from non-US Service Providers with at least one Listing in the US. You as a Service Provider are solely responsible for keeping the information in your tax forms current, complete and accurate. If you as a Service Provider fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold taxes from payments to you (e.g. where you are a U.S. Service Provider and you fail to provide us with a completed IRS Form W-9), we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both.
You as a Service Provider understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Zoilah cannot and does not offer Tax-related advice to any Members.
Where applicable, or based upon request from a Service Provider, Zoilah may issue a valid VAT or Sales Tax invoice to such Service Provider.
You understand and acknowledge that appropriate governmental agencies, departments or authorities (the "Tax Authority") where your Service is located may require Taxes to be collected from Service Clients or Service Providers on the amount paid for the right to receive/offer Services and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these taxes may be required to be collected and remitted as a percentage of the total cost for the service or Service Fees set by Service Providers, a set amount per appointment, or other variations, and are sometimes called "service taxes," "professional service taxes," "transient taxes," "sales and use taxes," "value added taxes," "appointment taxes" or any other type of taxes related to services (hereafter, "Appointment Taxes").
Appointment Tax Collection and Remittance
In certain jurisdictions, Zoilah may decide in its sole discretion to facilitate collection and remittance of Appointment Taxes from or on behalf of Service Clients or Service Providers, in accordance with your directions in this Agreement ("Collection and Remittance") if such tax jurisdiction asserts Zoilah or Service Providers have a tax collection and remittance obligation. In any jurisdiction in which we decide to facilitate direct Collection and Remittance, whether you are a Service Client or Service Provider, in lieu of the Service Provider collecting Appointment taxes from Service Clients and remitting to the Tax Authority, you hereby instruct and authorize Zoilah to collect Appointment Taxes from Service Clients on the Service Provider's behalf at the time Service Fees are collected, and to remit such Appointment Taxes to the Tax Authority. When Zoilah facilitates Collection and Remittance of Appointment Taxes in a jurisdiction for the first time, Zoilah will provide notice to existing Service Providers with Listings for Appointments in such jurisdictions. When a new listing is created in a jurisdiction where Zoilah facilitates Collection and Remittance of Appointment Taxes, the Service Provider will be notified in the listing creation flow.
The amount of Appointment Taxes, if any, collected and remitted by Zoilah will be visible to and separately stated to both Service Clients and Service Providers on their respective transaction documents. Where Zoilah is directly facilitating Collection and Remittance, Service Clients and Service Providers agree that Service Providers are not permitted to attempt collection, or collect any Appointment Taxes relating to their Appointments on Zoilah in that such jurisdiction. You expressly agree to release, defend, indemnify, and hold Zoilah and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, debts, obligations, and expenses, including, without limitation, reasonable legal and/or accounting fees, arising out of or in any way related to Appointment Taxes, including, without limitation, the applicability of, calculation, collection or remittance of Appointment Taxes in any amount or at all as to your transactions or Appointments. For any jurisdiction in which we facilitate Collection and Remittance, Service Providers and Service Clients expressly grant us permission, without further notice, to store, transfer and disclose data and other information relating to them or to their Transactions, Bookings, Appointments and Appointment Taxes, including, but not limited to, personally identifiable information such as Service Provider or Service Client's name, listing addresses, transaction dates and amounts, tax identification number(s), the amount of taxes collected from Service Clients or allegedly due, contact information and similar information, to the relevant Tax Authority.
Opt-in to Service Provider Remittance of Taxes
In other jurisdictions, Zoilah may decide in its sole discretion to facilitate Appointment Tax collection on behalf of Service Providers and Service Clients in accordance with a Service Provider's direction to opt in to a specific Appointment Tax line item in the booking process, in which the Service Provider directs that Appointment Taxes from Service Clients be sent directly to the Service Provider so that the Service Provider will remit such taxes directly to Tax Authority -("Opt-in for Service Provider Remittance"). In any jurisdiction in which we decide to facilitate Collection by Opt-in for Service Provider Remittance, whether you are a Service Client or Service Provider, you hereby instruct and authorize Zoilah to send Appointment Taxes received from Service Clients at the time Service Fees are collected to the Service Provider who is obligated to send such taxes to the Tax Authority directly. If Zoilah offers and a Service Provider selects Opt-in for Service Provider Remittance in any jurisdiction, Service Providers and Service Clients remain solely responsible and liable for the payment and remittance of any and all taxes that may apply to Appointments; you agree and understand that Zoilah is not responsible for, and will not send any such Appointment Taxes to the Tax Authority under Opt-in to Service Provider Remittance of Taxes. You hereby agree that through third party payment processors, Zoilah is merely processing Your election and direction to have Appointment Taxes from Service Clients sent directly to the Service Provider for remittance by the Service Provider to the Tax Authority, and that You will remit all amounts collected from Service Clients as Appointment Taxes to such Tax Authority. You expressly agree to release, defend, indemnify, and hold Zoilah and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, debts, obligations, and expenses, including, without limitation, reasonable legal and/or accounting fees, arising out of or in any way related to Appointment Taxes, including, without limitation, the applicability of, calculation of, collection of Appointment Taxes in any amount or at all as to your transactions or Appointments. For any jurisdiction in which we facilitate Opt-in for Service Provider Remittance, Service Providers and Service Clients expressly grant us permission, without further notice, to store, transfer and disclose data and other information relating to them or to their Transactions, Bookings, Appointments and Appointment Taxes, including, but not limited to, personally identifiable information such as Service Provider or Service Client's name, listing addresses, transaction dates and amounts, tax identification number(s), the amount of taxes received by Service Providers from Service Clients, or allegedly due, contact information and similar information, to the relevant Tax Authority.
Miscellaneous Appointment Tax Provisions
Whether you are a Service Client or Service Provider, you agree that any claim or cause of action relating to Zoilah's facilitation of Opt-in Remittance or Collection and Remittance of Taxes shall not extend to any supplier or vendor that may be used by Zoilah in connection with facilitation of Opt-in Remittance or Collection and Remittance of Appointment Taxes, if any. Service Clients and Service Providers agree that we may seek additional amounts from You in the event that the Taxes collected and/or remitted are insufficient to fully discharge your obligations to the Tax Authority, and agree that your sole remedy for Appointment Taxes collected is a refund of Appointment Taxes collected by Zoilah from the applicable Tax Authority in accordance with applicable procedures set by that Tax Authority.
In any jurisdiction in which we have not provided notice of, or are not facilitating (or are no longer facilitating) the collection or remittance of Appointment Taxes by Collection and Remittance, Opt-in for Service Provider Remittance or any other means or method, in your jurisdiction, Service Providers and Service Clients remain solely responsible and liable for the collection and/or remittance of any and all Appointment Taxes that may apply to Appointments.
Service Providers and Service Clients acknowledge and agree that in some jurisdictions, Zoilah may decide not to facilitate collection or remittance of Appointment Taxes or may not be able to facilitate the collection and/or remittance of Appointment Taxes, and nothing contained in this Agreement is a representation or guarantee that Zoilah will facilitate collection and/or remittance of Appointment Tax anywhere at all, including in any specific jurisdiction, or that Zoilah will continue to facilitate any collection or remittance of Appointment Tax in any specific jurisdiction in which it may have been offered. Zoilah reserves the right, in its sole determination, to cease any facilitation of any collection and remittance of Appointment Tax (regardless of method used or to be used in the future) for any reason or no reason at all, provided that it will give Service Providers reasonable notice in any jurisdiction in which Zoilah determines to cease any such facilitation.
Damage to Service Locations
As a Service Client, you are responsible for leaving the Service Location in the condition it was in when you arrived. You acknowledge and agree that, as a Service Client, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who accompany you to, or otherwise provide access to, the Service Location. In the event that a Service Provider claims otherwise and provides evidence of damage, including but not limited to photographs, you agree to pay the cost of replacing the damaged items with equivalent items. After being notified of the claim and given forty eight (48) hours to respond, the payment will be charged to and taken from the credit card on file in your Zoilah Account. Zoilah also reserves the right to charge the credit card on file in your Zoilah Account, or otherwise collect payment from you and pursue any avenues available to Zoilah in this regard, including using Security Deposits, in situations in which you have been determined, in Zoilah's sole discretion, to have damaged any Service Location, including, but not limited to, in relation to any payment requests made by Service Providers under the Zoilah Service Provider Guarantee, and in relation to any payments made by Zoilah to Service Providers. If we are unable to charge the credit card on file or otherwise collect payment from you, you agree to remit payment for any damage to the Service to the applicable Service Provider or to Zoilah (if applicable).
Both Service Clients and Service Providers agree to cooperate with and assist Zoilah in good faith, and to provide Zoilah with such information and take such actions as may be reasonably requested by Zoilah, in connection with any complaints or claims made by Members relating to Appointments or any personal or other property located at a Service (including, without limitation, payment requests made under the Zoilah Service Provider Guarantee) or with respect to any investigation undertaken by Zoilah or a representative of Zoilah regarding use or abuse of the Site, Application or the Services. If you are a Service Client, upon Zoilah's reasonable request, and to the extent you are reasonably able to do so, you agree to participate in mediation or similar resolution process with a Service Provider, at no cost to you, which process will be conducted by Zoilah or a third party selected by Zoilah or its insurer, with respect to losses for which the Service Provider is requesting payment from Zoilah pursuant to the terms hereof.
If you are a Service Client, you understand and agree that Zoilah may make a claim under your homeowner's, renter's or other insurance policy related to any damage or loss that you may have caused or been responsible for or to a Service or any personal or other property located at an Service (including without limitation amounts paid by Zoilah under the Zoilah Service Provider Guarantee). You agree to cooperate with and assist Zoilah in good faith, and to provide Zoilah with such information as may be reasonably requested by Zoilah, in order to make a claim under your homeowner's, renter's or other insurance policy, including, but not limited to, executing documents and taking such further acts as Zoilah may reasonably request to assist Zoilah in accomplishing the foregoing.
Zoilah's online platform facilitates bookings between Service Clients and Service Providers who may prefer to pay and to receive payments in different currencies, which may require foreign currency conversions to accommodate these differing currency preferences. Although the Zoilah platform allows users to view the price of Listings in a number of currencies, the currencies available for users to make and receive payments may be limited, and may not include the default currency in any given geographic location.
Each foreign currency conversion is processed at a foreign currency conversion rate. This rate generally refers to the amount of one currency that must be paid to buy a certain amount of another currency at a given time. For example, if it costs US$125.00 to buy €100.00, the currency conversion rate of US dollars to Euros would be 1.25, and the currency conversion rate from Euros to US dollars would be 0.8. Currency conversion rates will vary from time to time.
"Display Currency" means the currency in which users view Listing prices on the Zoilah platform. Service Clients may choose and change the Display Currency in order to view the pricing for a Listing in a number of different supported currencies.
"Booking Currency" means the currency in which a Service Client has to pay for his or her booking. At the time the Service Client submits a booking request, the Zoilah platform will select the Booking Currency, based on the Service Client's country of origin and the payment methods available for that country. Zoilah supports only a certain number of currencies as Booking Currencies. The Booking Currency for a booking may be different from the relevant Listing Currency.
"Listing Currency" means the currency in which a Listing's price is set. The Listing Currency is set by the Service Provider.
"Payout Currency" means the currency in which a Service Provider's payout will be paid to the Service Provider. The Payout Currency is set by the Service Provider.
"Base Exchange Rate" means a system-wide rate used by Zoilah for foreign currency conversion that is in effect at the time the foreign currency conversion is processed, and does not include any fee or mark-up by Zoilah. Zoilah establishes the Base Exchange Rate using data from one or more third parties such as OANDA (http://www.oanda.com).
"Adjusted Exchange Rate" means a rate for foreign currency conversion that is calculated by adding a mark-up to the Base Exchange Rate. This mark-up represents a charge imposed by Zoilah for its holding costs and foreign currency risks.
Foreign currency conversions on the Zoilah Platform
Zoilah will process a foreign currency conversion in the following situations:
The Display Currency is different from the Listing Currency when a user views a Listing: Zoilah will calculate the estimated Total Fees in the Display Currency, by applying either the Base Exchange Rate or the Adjusted Exchange Rate at the time of the view to the estimated Total Fees in the Listing Currency. The Adjusted Exchange Rate will be applied if the Display Currency is a supported Booking Currency, and it is different from the Listing Currency. Otherwise, the Base Exchange Rate will be applied.
The Booking Currency is different from the Listing Currency when a Service Client submits a booking request for a Listing: Zoilah will calculate the Total Fees in the Booking Currency, by applying either the Base Exchange Rate or the Adjusted Exchange Rate at the time of the booking request to the Total Fees in the Listing Currency. The Service Client will be able to view the actual exchange rate applied. The Service Client Fee, which is a percentage of the applicable Service Fees, will be calculated based on the Service Fees in the Booking Currency (i.e. after conversion from the Listing Currency). The Adjusted Exchange Rate will be applied if the Display Currency is the same as the Booking Currency, and it is different from the Listing Currency for the Listing. Otherwise, the Base Exchange Rate will be applied.
The Payout Currency is different from the Listing Currency when Zoilah initiates a payout: generally, Zoilah will calculate the payout to the Service Provider, by applying the Base Exchange Rate on the date that Zoilah initiates the payout to the Service Fees (less Zoilah's Service Provider Fees and any Taxes in respect of the Service Provider Fees, such as Sales Tax in the United States and VAT in Europe) in the Listing Currency. The Service Provider will be able to view the actual exchange rate applied in his or her transaction history in the Site or Application. In some cases where the payout method selected by the Service Provider involves certain third-party payment processors (such as Payoneer or Western Union), (i) Zoilah will send the payout amount to the processor in a major currency (e.g. U.S. dollars), by applying the relevant Base Exchange Rate for the Listing Currency to that major currency, (ii) the Service Provider will be able to view the payout amount sent by Zoilah in that major currency in his or her transaction history in the Site or Application, and (iii) the processor will calculate the actual payout to the Service Provider by applying its own foreign currency conversion rate for that major currency to the Payout Currency.
When a confirmed booking is modified or cancelled, and there had been a foreign currency conversion when the booking was submitted: the foreign currency conversion for any additional payments required of the Service Client or any refund to the Service Client will be processed at the same rate as applied to the earlier payment by the Service Client.
When you as a Service Client submit a booking request for a Listing, you will be able to view the actual exchange rate used to calculate the Total Fees in the Booking Currency. Where the Adjusted Exchange Rate is applied, you will be able to view the mark-up included in the rate. The actual exchange rate (and any mark-up included in the rate) will also be stated in the billing receipt for your booking.
Zoilah updates the Base Exchange Rate on a regular basis, but not on a real-time basis. In particular, Zoilah does not always change the Base Exchange Rate immediately when its costs of foreign exchange change. Accordingly, the Base Exchange Rate may not be identical to the applicable market rate in effect at the specific time a foreign currency conversion is processed.
Please note that your payment company (for example, your credit or bank card issuer) will use a currency conversion rate for and may impose a currency conversion fee on your payment or payout, if your card or bank account is denominated in a currency that is different from the Booking Currency or the Payout Currency respectively. Similarly, third-party payment processors may also use a currency conversion rate for or impose a currency conversion fee on your payment or payout. All of these currency conversion rates and fees are not controlled by or known to Zoilah.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Collective Content. In connection with your use of the Site, Application, Services and Collective Content, you may not and you agree that you will not:
violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the Site, Application, Services or Collective Content;
use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
copy, store or otherwise access or use any information contained on the Site, Application, Services or Collective Content for purposes not expressly permitted by these Terms;
infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
interfere with or damage our Site, Application or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
use our Site, Application, Services or Collective Content in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to any kind of Service that is legal;
"stalk" or harass any other user of our Site, Application, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as an Zoilah Service Client or Service Provider;
offer, as a Service Provider, any Service that you do not yourself own or have permission to list (without limiting the foregoing, you will not list Appointments as a Service Provider if you are serving in the capacity of a agent or listing agent for a third party);
offer, as a Service Provider, any Service that may not be received or acquired pursuant to the terms and conditions of an agreement with a third party, including, but not limited to, a pre-established agreement;
register for more than one Zoilah Account or register for an Zoilah Account on behalf of an individual other than yourself;
contact a Service Provider for any purpose other than asking a question related to a booking, such Service Provider's Appointments or Listings;
contact a Service Client for any purpose other than asking a question related to a booking or such Service Client's use of the Site, Application and Services;
recruit or otherwise solicit any Service Provider or other Member to join third-party services or websites that are competitive to Zoilah, without Zoilah's prior written approval;
impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
use automated scripts to collect information from or otherwise interact with the Site, Application, Services or Collective Content;
use the Site, Application, Services or Collective Content to find a Service Provider or Service Client and then complete a booking of a Service independent of the Site, Application or Services, in order to circumvent the obligation to pay any Service Fees related to Zoilah's provision of the Services or for any other reasons;
as a Service Provider, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honor;
post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
use, display, mirror or frame the Site, Application, Services or Collective Content, or any individual element within the Site, Application, Services or Collective Content, Zoilah's name, any Zoilah trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, Application or Services, without Zoilah's express written consent;
access, tamper with, or use non-public areas of the Site, Application or Services, Zoilah's computer systems, or the technical delivery systems of Zoilah's providers;
attempt to probe, scan, or test the vulnerability of any Zoilah system or network or breach any security or authentication measures;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Zoilah or any of Zoilah's providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
advocate, encourage, or assist any third party in doing any of the foregoing.
accept or make a payment for Service Fees outside Zoilah’s Payments ways. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Zoilah harmless from any liability for such payment.
Zoilah has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
Zoilah may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Zoilah or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Zoilah, its users, or members of the public. You acknowledge that Zoilah has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Zoilah reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Zoilah, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights, including but not limited to the trademarks “Zoilah”, “Z”, “Zoindependent”, “ZoilApp”, are the exclusive property of Zoilah and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content.
Our Services have different products and offerings, so sometimes additional terms or product requirements may apply to your use of those products. For example, additional terms apply if you refer new Service Providers to Zoilah ("Affiliation Program"). If additional terms are available for the relevant product or Services you use, those additional terms become part of these Terms.
Specific Terms Regarding Zoilah Credits or “ZoiCredits”
Zoilah Credits (or ZoiCredits) may only be redeemed for confirmed bookings via the Site, Application and Services and after you accrue Zoilah Credits, such Zoilah Credits will be automatically applied to your next confirmed booking made via the Site, Application and Services. Zoilah Credits are credit only and have no cash value nor can they be refunded or exchanged for cash. You may only redeem Zoilah Credits after the Zoilah Credits are reflected in your Zoilah Account. The scope, variety, and type of services and products that you may obtain by redeeming Zoilah Credits can change at any time.
Zoilah Credits expire three (3) years from the date that any Zoilah Credits are last accrued in your Zoilah Account. Zoilah will notify you at the email address you provided during Account registration within thirty (30) days of when the Zoilah Credits in your Zoilah Account are scheduled to expire. If for some reason you believe that there is a discrepancy regarding your balance of Zoilah Credits, please contact us. Zoilah may require you to submit additional information in order to make a determination regarding your balance. All decisions regarding your balance will be final and at Zoilah's sole discretion. You are responsible for any Tax consequences, if any, that may result from your redemption or use of Zoilah Credits. Where applicable, Zoilah may be required to account for Sales Tax or VAT on any services for which the Zoilah Credits are redeemed.
Without limiting any other terms of these Terms and subject to applicable law, all Zoilah Credits are forfeited if your Zoilah Account is terminated or suspended for any reason, in Zoilah's sole discretion, or if Zoilah discontinues providing the Site, Application, Services or the Affiliation Program.
Subject to your compliance with these Terms, Zoilah grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on each mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Zoilah reserves all rights in the Application not expressly granted to you by these Terms.
Zoilah Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, Zoilah grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Zoilah Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Zoilah or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to Zoilah a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Site, Application and Services. Zoilah does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Zoilah the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Zoilah's use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Links to Third Party Resources
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Zoilah is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Zoilah of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Zoilah, including but not limited to “Zoilah”, “Z”, “Zoindependent”, “ZoilApp”, used herein are trademarks or registered trademarks of Zoilah. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services ("Feedback"). You may submit Feedback by emailing us, through the designated feedback links located in our Site and Application, or by email at email@example.com. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of Zoilah and you hereby irrevocably assign to Zoilah and agree to irrevocably assign to Zoilah all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At Zoilah's request and expense, you will execute documents and take such further acts as Zoilah may reasonably request to assist Zoilah to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Zoilah respects copyright law and expects its users to do the same. It is Zoilah's policy to terminate in appropriate circumstances the Zoilah Accounts of Members or other account holders who infringe or are believed to be infringing the rights of copyright holders.
Zoilah makes no representations that it will publish or make available on the Application any Member Content, and reserves the right, in its sole discretion, to refuse to allow any Member Content on the Application, or to edit or remove any Member Content at any time with or without notice. Without limiting the generality of the preceding sentence, Zoilah complies with the Digital Millennium Copyright Act, and will remove Member Content upon receipt of a compliant takedown notice. Users understand that when using the Application, you may be exposed Member Content from a variety of sources and that Zoilah does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Member Content. You further understand and acknowledge that you may be exposed to Member Content that is inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST SPORTSBUDDY WITH RESPECT THERETO.
If you provide Zoilah with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Application (“Feedback”), Zoilah shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Application. You hereby grant Zoilah a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
Suspension, Termination and Zoilah Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Zoilah Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Zoilah Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Application, Services, your Zoilah Account, your Member Content, or receive assistance from Zoilah Customer Service, (b) any pending or accepted future bookings as either Service Provider or Service Client will be immediately terminated, (c) we may communicate to your Service Clients or Service Providers that a potential or confirmed booking has been cancelled, (d) we may refund your Service Clients in full for any and all confirmed reservations, irrespective of preexisting cancellation policies, (e) we may contact your Service Clients to inform them about potential alternate Appointments with other Service Providers that may be available on the Site, Application and Services, and (f) you will not be entitled to any compensation for reservations or bookings (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your Zoilah Account. You may cancel your Zoilah Account at any time via the "Cancel Account" feature of the Services or by sending us an email. Please note that if your Zoilah Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
Zoindependent Affiliation Program
"Zoindependent" means a Member who is part of the “Affiliation Network” or “Affiliation Program”
"Zoindependent Account" means the Account or Membership of a Zoindependent.
"Affiliation Program" or "Affiliation Network" means the program or network through which people may affiliate Service Providers and Zoindependents.
"Genealogy" means all the Zoindependents that are in someway linked to a certain Member of the Affiliation Program.
"Zoindependent Fees" means the fees Zoilah may add to requests made by a Zoindependent.
"Zoindependent Secondary Fees" means the fees a Zoindependent receives per appointment of a Service Provider that a Zoindependent invited to the Affiliation Program affiliated.
"Zoindependent Primary Commission" means the Commissions a Zoindependent receives per appointment of a Service Provider affiliated directly himself.
"Zoindependent Secondary Commission" means the Commissions a Zoindependent receives per appointment of a Service Provider that a Zoindependent invited to the Affiliation Program affiliated.
"Zoindependent Reference Code" means the unique identification number that represents each Zoindependent.
Zoilah may add fees to orders, or deduct from bonus, or commissions checks for genealogy reports requested by a Member, label fees, transfer request fees, maintenance fees, and fees for other services provided by Zoilah.
Service Provider Automatic Zoindependent Status
Service Providers acknowledge and accept that they will automatically become Zoindependent Affiliation Program Members.
Relationship of Parties
Zoindependent Members are independent contractors and are not purchasers of a franchise or a business opportunity. The agreement between Zoilah and its Members does not create an employer/employee relationship, agency, partnership, or joint venture between the Zoilah and the Zoindependent. Zoindependent Members shall not be treated as an employee for his, her or its services or for Federal or local tax purposes. Under no circumstances shall Zoindependent Members or its Representatives (i) look to or represent Zoilah as its employer, partner, agent or principal; or (ii) be entitled to any benefits accorded to Zoilah employees, including but not limited to worker’s compensation, disability insurance, unemployment insurance, social security insurance, country, federal, provincial, state or city taxes, vacation or sick pay. All Zoindependents are solely responsible for paying local, state (provincial), and federal taxes due from all compensation earned as a Member of the Affiliation Program. The Zoindependent has no authority (expressed or implied), to bind Zoilah to any obligation, contract or commitment. Each Member shall establish his, her or its own goals, hours, and methods of sale, so long as he, she or it complies with the terms of the Member Agreement, these Terms, and applicable law. Zoindependent Members shall be responsible, at Zoindependent Members’s sole cost and expense, for providing any and all licenses and permits usual or necessary for performing the Services hereunder.
A Zoindependent hereby consents to Zoilah’s use of the Zoindependent’s image including, but not limited to: the Zoindependent’s name, professional name(s), photographs, testimonials, likeness, title, positions, voice(s), biography, and any film footage, videotapes, audiotapes, recordings, articles, and interviews of the Zoindependent, in any form and medium whatsoever, when created in connection with any Zoilah product or opportunity, any events, promotions, and/or conventions to advertise, promote, and publicize Zoilah product or the Zoilah Business Opportunity. A Zoindependent may withdraw such consent by notifying Zoilah in writing and providing at least thirty (30) days advance notice before such withdrawal takes effect.
In addition, a Zoindependent agrees that Zoilah may contact the Zoindependent by the provided telephone number, fax number, or E-mail address concerning his, her or its Zoilah Business and Zoindependent status during and even after the term of this Contract. Zoindependent also acknowledge that they agree to accept electronic copies (fax, scans, reprints or other formats) as being the same as the original documents, and that documents, requests, and authorizations submitted electronically on behalf of the Zoindependent are explicitly deemed to have the same force in law as their manual signature. Zoindependent also consent to having various earnings reclaimed by the company from a Zoindependent’s future earnings including, but not limited to: Return merchandise authorizations (RMA), fraud, credit card charge-backs, insufficient funds check returns, Commissions paid erroneously, and/or disciplinary actions.
Zoilah endeavors to enforce the Contract on a uniform and nondiscriminatory basis. However, the failure of Zoilah to enforce any of the provisions of the Contract with one Zoindependent does not waive the right of a Zoilah to enforce any such provision(s) with that same Zoindependent or any other Zoindependent.
Zoilah desires to protect its Zoindependents from inappropriate and unfair competition. Lists of Zoindependents and any customers, activity reports, Genealogies, and other information regarding Zoindependents (hereinafter “Lists”), whether partial or complete, provided by or originating from Zoilah or any Zoindependent or Service Provider may not be reproduced in any way or in any part by a Zoindependent. The Lists are the confidential and proprietary property of Zoilah. Zoilah has derived, compiled, configured, and currently maintains Lists through the expenditure of significant time, computer programming and monetary resources. Lists, in present and future forms and as amended from time to time, constitute commercially advantageous proprietary assets and trade secrets of Zoilah, which Zoindependents agree to hold confidential. Lists shall not be disclosed by Zoindependents to any third party or used for any purpose other than in the performance of their obligations under the Contract and for the benefit of Zoilah and the Zoindependent. Lists are provided for the exclusive and limited use of the Members to facilitate the training, support, and service of the Zoindependent’s Genealogy to further the Zoindependent’s Network.
To access Zoilah Information, materials or Lists online or through other electronic or physical means, a Zoindependent agrees to comply with all requirements designated for such access. Each Zoindependent agrees that the use of Lists within the intended scope constitutes a separate, exclusive license agreement between the Zoindependent and Zoilah. Lists remain, at all times, the exclusive property of Zoilah and must be returned to Zoilah immediately upon request. A Zoindependent who receives a List agrees to limit the use of said List to exclusively advance a Zoindependent’s Zoilah Business; and to hold confidential and not disclose any List or portion thereof to any third party, including, but not limited to, other Zoindependents, competitors, and the general public. Any unauthorized use or disclosure of Lists constitutes misuse, misappropriation, and a violation of the Contract and is acknowledged to cause irreparable harm to Zoilah. Zoindependents agree that upon any violation of this paragraph, the Zoindependent will stipulate to injunctive relief, enjoining such use under applicable national, state or local law, and retrieve and return to Zoilah all existing Lists previously provided to the Zoindependent, and that intended or unintended misuse of a List may be cause for termination of a Zoindependent’s Genealogy and membership to the Affiliation Program, whether or not such misuse causes irreparable harm to Zoilah or one of its Zoindependents. In addition, a Zoindependent agrees that the obligations under this section shall survive the termination of the Contract and that Zoilah reserves the right to pursue all appropriate remedies under applicable national, state or local laws to protect its rights to the Lists as proprietary and trade secrets of Zoilah. Any failure to pursue such remedies will not constitute a waiver of those rights. A Zoindependent agrees that, but for this agreement of confidentiality and non-disclosure, Zoilah would not provide the Lists to the Zoindependent. Zoilah reserves the right to restrict the nature and scope of such information at its sole discretion, including the number of levels a given Zoindependent may have access to, as well as the type and amount of information made available at any level.
The Zoindependents acknowledge and accept the following as the only available payment methods, and their respective characteristics.
Commissions are calculated on the Friday following the close of the week. They are posted by Saturday, and transferred-out on the Monday following the close of the pay period. Zoilah reserves the right to withhold or deduct any future necessary fees to compensate or resolve previous payment errors. Commissions are paid through the following methods:
ACH: (The ACH payment option is currently only available in the United States). Zoilah may modify ACH payments up until the Thursday after commissions have been paid-out. Direct deposit may take one to three (1-3) business days to complete. In the event that Zoilah determines that it will reissue commissions for whatever reason, Zoilah will reissue said funds within seven (7) business days from the date of determination.
Payoneer Bank transfer/debit card: (The Payoneer payment option is only available in the countries available according to Payoneer’s availability). Zoilah may modify Payoneer payments up until the Thursday after commissions have been paid-out. In the event that Zoilah determines that it will reissue commissions for whatever reason, Zoilah will reissue said funds within seven (7) business days from the date of determination. Payoneer payment times may vary as they are a company independent of Zoilah and if it becomes necessary to contact Payoneer regarding payments, it is the Zoindependent’s responsibility to do so. Payoneer needs to approve the Zoindependent’s details before him, she or it can receive payouts.
International wire: Depending on the Zoindependent’s location, he, she or it may need to enter his, her, its account number or IBAN. A Zoindependent’s bank can provide the Zoindependent all the necessary details. Bank fees may apply.
PayPal: The Zoindependent is responsible for verifying his, her or its account is activated on PayPal before adding it as an Zoilah payout method.
Changing Payment Method
When a new method of payment is selected, Zoilah will verify and validate the new payment method. Commissions earned during the validation period may be held in hold and then paid with the commissions of the week following the validation of the payment preference change.
Commission Rights Term
Zoilah will payout the Zoindependent Primary Commissions and the Zoindependent Secondary Commissions for no less than three (3) years, and Zoilah reserves the right to extended the term based on Zoilah’s discretion. The term starts for each new Service Provider from the moment it is affiliated.
Zoindependents Tax ID
When a Zoindependent earns an accumulated $300.00 USD or more in commissions, Zoilah will reserve the right to request a valid tax identification (ID). Zoilah reserves the right to require supporting documentation demonstrating the ID is valid and belongs to the Zoindependent. Failure to provide the required ID upon reaching the stated threshold will result in a commission hold. Zoilah may adjust the threshold requirements based on local laws.
Zoindependent Accounts and Earnings
Zoindependents are not permitted to earn commissions on more than one account, nor are Zoindependents permitted to have a beneficial interest in more than one account that is earning commissions. A beneficial interest is defined as the right to receive benefits on assets held by another party. Teaching the use of multiple accounts is also prohibited. Persons residing in the same household may have separate accounts as long as one of the parties does not have rights to the earnings of the other Zoindependent. A spouse is also permitted to maintain a separate account as long as neither one of the two have rights to the earnings of the other Zoindependent. A separate tax identification number must be provided for each account as outlined in these Terms.
Zoindependent Divorce or Partnership Dissolution.
In the unfortunate circumstance that married couple, or partners who share in a certain Service Provider, therefore sharing an interest as Zoindependent, obtain a divorce or wish to dissolve their partnership, Zoilah will continue to treat the Service Provider according to the existing Membership ownership until such time as Zoilah receives written notice from both parties, or a certified court order directing otherwise. The written notice must be signed by all parties and notarized.
Upon death, a Membership to Zoindependent may pass to successors in interest as provided by law, and, upon Zoilah receiving, from the successor, a certified copy of the death certificate, and will, trust or any other legal instrument demonstrating the successor’s rights and interest. After acceptance by Zoilah, a successor shall be entitled to all the rights and privileges, and subject to the duties and obligations of the Contract.
Zoilah reserves the right to require a valid Zoindependent Reference Code to enroll a new Zoindependent in the Affiliation Program. A Zoindependent may not request funds in any direct or indirect way in order to provide his, her or its Zoindependent Reference Code, nor will a Zoindependent require or request a partial interest in the new account being created with his Zoindependent Reference Code. The Zoindependent Affiliation Program enrollment to Zoindependent must be free.
Service Provider Affiliation by a Zoindependent
Zoilah reserves the right to require a valid Zoindependent Reference Code to affiliate a Service Provider in the Affiliation Program. A Zoindependent may not request funds in any direct or indirect way in order to provide his, her or its Zoindependent Reference Code, nor will a Zoindependent require or request a partial interest in the new account being created with his Zoindependent Reference Code. The Zoindependent Affiliation Program enrollment for Service Providers must be free.
Zoindependent Status Changes and Transfers
To convey, sell, assign, or otherwise transfer an Zoindependent Account or any interest therein, a Zoindependent must contact Zoilah directly and provide a notarized request, and Zoilah reserves the right to request any other documentation deemed necessary for the transfer or status change. Such requests may take up to fifteen business days to complete. No Zoindependent shall sell or assign a Membership in order to circumvent the Contract, including but not limited to cross-sponsoring rules, and/or the possession of or interest in, more than one Zoindependent account, or any mandatory waiting period after the termination of a previous Zoindependent account. Zoilah reserves the right to review any sale or assignment, and to impose reasonable conditions on the sale or assignment to ensure compliance with the Contract.
Unauthorized Claims and Actions
A Zoindependent is fully responsible for all of his or her verbal and written statements made regarding Zoilah products, services, and the Compensation Plan which are not expressly contained in current official Zoilah materials. Zoindependents agree to indemnify Zoilah and Zoilah's directors, officers, employees, and agents, and hold them harmless from any and all liability including judgments, civil penalties, refunds, attorney fees, court cost, or lost business incurred by Zoilah as a result of the Zoindependent's unauthorized representations or actions. This provision shall survive the termination of this Agreement.
In their eagerness to enroll prospective Zoindependents, some Zoindependents are occasionally tempted to make income claims or earnings representations to demonstrate the inherent power of the Affiliation Program. This is counterproductive because new Zoindependents may become disappointed very quickly if their results are not as extensive or as rapid as the results others have achieved. Moreover, the Federal Trade Commission and several states and provinces have laws or regulations that regulate or even prohibit certain types of income claims and testimonials made by persons engaged in network marketing. Therefore, Zoindependents may not make income projections, income claims, representations, or disclose his or her Zoilah income or the income of any other Zoilah Zoindependent (including the showing of checks, copies of checks, bank statements, or tax records).
Zoindependent Renewal, Resignation and Termination
Zoilah Business Ethics
Zoilah honors all applicable federal, state, and local laws and regulations governing good business practices. Zoindependents must adhere to the same ethical business practices to be successful. A Zoindependent agrees to comply with the Contract, all contractual obligations, and any applicable state and federal laws. Any breach or violation of the Contract may be deemed unethical and grounds for disciplinary action, including termination, to protect Zoilah, its Zoindependents and the integrity of the Zoilah in general. Examples of unethical behavior include, but are not limited to: 1) Cross-sponsoring; 2) Attacking another Zoindependent’s Genealogy or sales organization; 3) Unauthorized use of another person’s credit card; 4) Credit card charge backs; 5) Misrepresenting Zoilah, the companies applications, websites and products or Zoilah’s Compensation Plan; 6) Engaging in any deceptive or unlawful trade practice or other illegal or unlawful activity; 7) Creating or publishing advertising material without prior Company approval; 8) Any unauthorized use of the Zoilah names, trade names, domain names, patent information, trademarks, or logos; 9) Manipulating the Zoilah Compensation Plan; and 10) Defaming, making libelous statements or impugning Zoilah, its products, services, staff, executives, vendors, or other Zoindependents.
A Zoindependent may not, directly or indirectly, Enroll, solicit, or attempt to Enroll or solicit any existing Zoindependent into another Zoindependent Account. Such prohibited activities constitute unfair competition with Zoilah and are also known as “Cross-Sponsoring”.
A Zoindependent may, at any time, voluntarily resign as a Zoindependent. A Zoindependent who resigns loses all rights and all beneficial interests in the resigned Zoindependent Account and to the Genealogy of Zoindependents. A Zoindependent who voluntarily resigns may not reapply for a new Zoindependent Account or apply to hold a beneficial interest in an existing Zoindependent Account until six (6) months after their last date of activity. A Zoindependent may resign voluntarily by submitting to Zoilah a resignation letter signed and indicating the Zoindependent name(s) and ID Number(s) and returning or destroying (including a notarized statement that they personally performed or witnessed such destruction) all Zoilah Lists, or other proprietary information in the Zoindependent’s possession or control. Any terminating Zoindependent is responsible for returning or destroying all Zoilah Lists in the Zoindependent’s possession or control.
Failure to abide by the Contract may lead to appropriate disciplinary action. After a disciplinary action is complete, Zoilah, at its discretion, may announce details of such disciplinary action publicly. Policy violations that do not lead to immediate termination may be dealt with as detailed below. The disciplinary process may involve any one step, some, or all of these steps:
a. Informal warning. The Zoindependent may be notified verbally or in writing that the Zoindependent is in violation of the Contract.
b. Formal warning. A formal written warning may be sent to the offending Zoindependent explaining the violation, required corrective action and stating that failure to remedy the stated violation may result in further disciplinary action.
c. Probation. A Zoindependent may be placed on probation for violating the Contract. The length and conditions of the probation may vary, depending upon the circumstances, but may include the denial of access to Genealogy organizations, Lists, the virtual office, any Zoilah websites or other restrictions. A Zoindependent placed on probation may appeal the probation using the same procedures for appealing a suspension.
d. Suspension. Suspension is the temporary withdrawal of a Zoindependent’s license to act as a Zoindependent. A Zoindependent and their Zoindependent Membership may be suspended for serious violations or breaches of the Contract, and a suspension may last for a period of days or months, depending on each circumstance. Zoindependents may also be suspended during investigation of potential violations or breaches of the contract. In the event of a suspension, a suspension letter will be sent to the Zoindependent. This notice will list actions the Zoindependent must take in order for Zoilah to revoke the suspension, or the issues being investigated. These actions may include the immediate cessation of all violations; the submission of a written statement to Zoilah responding to the suspension; and such other action as may be necessary or requested by Zoilah. A Zoindependent who fails to respond to a suspension letter may be terminated. A Zoindependent may appeal a suspension in writing within the time period outlined in the suspension letter. Suspended Zoindependents are not eligible to receive compensation, earned or otherwise, from Zoilah or participate in any Zoilah functions or programs. Zoilah reserves the right to withhold compensation until the disciplinary process has been completed to Zoilah’s satisfaction. Suspended Zoindependents will not qualify in the Zoilah Compensation Plan during their term of suspension. Zoilah may, at its absolute discretion, qualify a Zoindependent during the suspension and retain all the earned Commissions to offset Zoindependent-caused damages to Zoilah. Additional administrative processing fees may also be assessed. e. Termination. When a decision is made to protect Zoilah and other Zoindependents and/or customers by terminating a Zoindependent for cause, Zoilah will send notification by mail to the terminated Zoindependent at the most recent address on file. Upon receipt of notice from Zoilah, the Zoindependent shall immediately cease all Zoindependent activities and return all Lists to Zoilah. Notice will be deemed received upon delivery, but no later than ten (10) days after mailing.
A Zoindependent may be terminated at any time by Zoilah for cause. A Zoindependent agrees that Zoilah has the right to take quick and decisive action in limiting or terminating a Zoindependent that is found in violation of the Contract or any state or federal laws, statutes, and/or regulations that pertain to the Zoilah Business. Zoilah also reserves the right to pursue reasonable legal recourse for any such violations, as well as reimbursement from the Zoindependent for any expenses arising from the violation, including court costs and attorneys’ fees. Any Zoindependent who is terminated under this clause must perform the acts described in the Contract regarding the surrender or destruction of any and all Lists and/or other intellectual property owned by Zoilah; additionally, terminated Zoindependents are reminded that the terms of confidentiality in this Contract survive a Zoindependent’s termination.
Appeal of Termination
A Zoindependent who has been terminated involuntarily may appeal the termination by submitting a written explanation, including any Force Majeure Event or mitigating circumstances. The Zoindependent must submit the written appeal within the time period specified in the termination letter, but no later than ten (10) calendar days of receipt of notice of the termination. Zoilah will review any timely appeal and notify the Zoindependent of its decision. If the appeal is not received within the specified time period, the termination will be final. Appeals of termination have to be submitted according to the indications send in the termination letter.
Whether a Zoindependent is terminated through voluntary resignation or through involuntary termination by Zoilah, that Zoindependent’s licenses, rights, and privileges are revoked and the Zoindependent is no longer entitled to use the Zoindependent platform, to sponsor other prospective Zoindependents, or represent himself/herself as an independent contractor or Zoindependent of Zoilah or to receive Commission payments. Any Bonus Rollover amounts on a terminated account may be converted to account credits at the time of termination. In addition, a terminated Zoindependent loses all rights to the existing Genealogy and is no longer entitled to receive Commissions, awards, or any compensation or recognition whatsoever, already earned or otherwise, from Zoilah, nor is the Zoindependent entitled to any other claim for indemnification with regard to the loss of his or her customer base or any investments made. A Zoindependent also forfeits any rights to Lists. A terminated Zoindependent must immediately return all existing Lists to Zoilah including all other documents and materials made available to him or her. Involuntarily terminated Zoindependent Accounts are the exclusive property of Zoilah and may remain in the current Zoilah Genealogy position to be disposed of in a manner that reflects consideration and serves the best interests of Zoilah, as well as the interests of the entire Genealogy of Zoindependents of the terminated Zoindependent Account. A Zoindependent who has been terminated for cause may not reapply for a Zoindependent Account for one year following the date of termination.
General Zoindependent Terms and Conditions
A Zoindependent warrants that by entering into this Contract, the Zoindependent does not violate any other agreements the Zoindependent has entered into with a third party, and further, that the Zoindependent has not entered into any agreement or contract that may invoke a non-competition restriction by any employer or direct selling company that will restrict or prevent the Zoindependent from performing the Zoindependent’s duties hereunder, and that the Zoindependent has no existing contractual or fiduciary duties that would prevent the Zoindependent from receiving the benefits of, and performing the duties of, this Contract. Zoindependents agree to indemnify Zoilah and Zoilah's directors, officers, employees, and agents, and hold them harmless from any and all liability including judgments, civil penalties, refunds, attorney fees, court cost, or lost business incurred by Zoilah as a result of claims or legal action brought against the Zoindependent by any former employer or direct selling company alleging breach of contract or other violation of any non-competition agreement. This provision shall survive the termination of this Agreement.
Amendment and Acceptance
Zoilah may amend these Terms, at any time, at its sole and absolute discretion. A Zoindependent’s continuation of a Zoilah Business and/or acceptance of any earnings pursuant to the Zoilah Compensation Plan or acceptance of any other benefits under the Contract constitutes acceptance of the Contract in its entirety along with any and all amendments thereto.
Limitation of Liability
Regardless of the form of claim, whether in tort, contract, or other, Zoilah and its officers, employees, and agents shall not be liable for any consequential, incidental, special, or punitive damages, including lost profits, for any claims by a Zoindependent. No legal action may be brought by either party to the Contract more than one (1) year after the event giving rise to the cause of action has occurred.
In the event that any section or subsection of the Contract shall be found invalid or unenforceable, it shall be deemed to be removed from this Contract, and shall have no impact upon the validity or enforceability of any other section.
Zoilah encourages Zoindependents to promote Business Opportunity pursuant to the appropriate guidelines issued by Zoilah. These guidelines are required in order for Zoilah to ensure compliance by Zoindependents and Zoilah with the myriad of laws that govern the advertising of Business Opportunity. Failure to follow these guidelines can result in violations of local and national laws, which may result in damage to the reputation of Zoilah, as well as restrictions upon Zoilah and Zoindependents that could trigger undesirable publicity and possible fines, penalties and/or legal actions.
Internet and Other Electronic Media.
A Zoindependent may not use electronic media advertising of Zoilah product or the Zoilah Business Opportunity on television, radio, social media, websites, or on any Internet site without prior written approval from Zoilah. Compliance with this policy ensures an equal opportunity for all Zoindependents to succeed with Zoilah.
A Zoindependent may use the Internet to promote the Zoilah Business Opportunity by creating a personalized Website, however, the Website must display a graphic, approved by Zoilah that states they are an independent Zoindependent. “Website” includes any and all forms of social media, which is further defined as all forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content (i.e. videos). Such Websites and all other Websites used by a Zoindependent are subject to review and approval by the Zoilah Compliance Department. A Zoindependent may not register or use any Zoilah name(s), trademark(s), logo(s), or product name(s) in any URL address or domain name. Zoilah reserves the right, at its discretion, to reject, refuse, and withdraw a URL or domain name. Further, the website shall not contain any hyperlinks to websites of competitors or competitors’ products. It must be a “stand alone” website of a Zoindependent Account. A Zoindependent’s Website may display Zoilah information as long as the information and website are approved in advance by the Zoilah Compliance Department and are compliant with this Contract. Any product information located on the Zoilah Virtual Office Website is available for use or download by a Zoindependent on their stand-alone Zoilah Website. Generally speaking, a Zoindependent’s website may contain certain personal and opportunity testimonials as well as motivational information, provided the material reflects the honest and balanced expression of the true experience of the provider and meets the other requirements. A Zoindependent’s website shall not infringe on any third-party trademarks or copyrights. The Zoindependent agrees to indemnify and hold Zoilah, its affiliates, and subsidiary organizations and their directors, officers, employees, and agents harmless against any action or claim for infringement on a third party’s intellectual property rights arising from the website.
Zoilah may allow a Zoindependent to use Zoilah names, logos, or trademarks provided such use is in accordance with the Contract. All Zoilah literature, audiotapes, videotapes, Internet website material, and programs are copyrighted by Zoilah and may be duplicated only by obtaining the prior written consent of Zoilah. Please forward all such requests to Zoilah’s Compliance Department.
Zoindependent Autonomous Incentive Programs.
Zoindependents may offer incentive programs to their team and prospective Zoindependents of their team; however, Zoindependents may not publicly advertise such incentive programs because such advertisements may result in, direct or indirect, cross-sponsoring or other violations of these Terms.
Proprietary Names and Intellectual Property Rights
A Zoindependent may not use Zoilah’s employee names, trademarks, service marks, trade dress or trade names, domain names, logos, Zoilah media or public relations events or any distinctive phrases or sounds used by Zoilah to promote the Zoindependent’s business prior to receiving written permission from Zoilah. To protect the proprietary rights of Zoilah, a Zoindependent may not obtain, through filing for a patent, trademark, Internet domain name, or copyright, any right, title, or interest in or to the names, domain names, trademarks, logos, or trade names of Zoilah and its products. As Zoilah changes or abandons any of its trade names or marks, a Zoindependent agrees to also change or abandon such trade names or marks. Should a Zoindependent possess or control any Zoilah intellectual property rights, or come into possession or control of said marks or other property, the Zoindependent agrees to assign such intellectual property rights without charge or delay to Zoilah.
Income and Opportunity Claims
No unreasonable or misleading claims or intentional misrepresentation of earnings or potential income may be made by a Zoindependent. Income guarantees of any kind are prohibited by the Contract and by law, as is the exhibition of actual or copies of Commission checks or earnings statements. Income representations must be honest and based on fact. In addition, income representations must include disclaimers that earnings may vary depending on the degree of effort employed. No earnings are guaranteed, and a Zoindependent is not guaranteed to reach a certain compensation level.
Sale or Promotion of Non-Zoilah Product, Applications, Websites, Opportunities, or Materials
A Zoindependent shall not sell, promote, or advertise non-Zoilah Product, Applications, Websites, Opportunities, or Materials that are competitive with Zoilah Product, Applications, Websites, Opportunities, or Materials, on Internet sites that offer the Zoilah opportunity or product, or at Zoilah functions to Zoindependents, Service Providers or Service Client. Zoilah functions include, but are not limited to conventions, meetings, seminars, teleconferences, webinars or similar events prepared by a Zoindependent of Zoilah for Zoindependents, prospective Zoindependents, or employees of Zoilah. Sales and/or recruiting in violation of this provision may constitute unfair competition against Zoilah and a breach of the Contract. Such violation is subject to disciplinary action, up to and including termination of the Zoindependent Account and other legal actions.
Future Growth Claims
A Zoindependent shall not imply or assert that additional products or services will be added to the products and services currently offered by Zoilah, or that enhancements to the Zoilah Compensation Plan are forthcoming, or that specific territories or areas will be opened or added to the Zoilah business operation unless or until the change or event has been officially announced in writing by Zoilah.
A Zoindependent shall not state, suggest, or imply that the Zoilah Compensation Plan or its products or business opportunities are approved by any state attorney general, federal or state government authority or agency, or any other third party
A Zoindependent may not, without the prior written approval of Zoilah, produce for sale or distribution, in personal or business use, any audio, video, or other recording of Zoilah sponsored events, speeches, employees or meetings. Neither may a Zoindependent produce or make available to others any company recordings without the express written permission of Zoilah
Media Inquiries. In order to ensure accuracy and consistency of information, a Zoindependent who receives any inquiry from the press or other media regarding any aspect of Zoilah, its Product, Applications, Websites, Opportunities, or Materials should be communicated and checked with Zoilah.
Telephone Book and Directory Listings.
All listings for telephone publications and/or other directory type services, should read as follows: “Zoindependent Private Agent” followed by the Zoindependent’s name, address, and telephone number. A Zoindependent may not display advertisements in telephone directories using the Zoilah name(s), logo(s), image(s), or product name(s), excluding such marks approved specifically for this purpose. A Zoindependent listing a toll-free telephone number may not use any Zoilah name(s), logo(s), or product name(s) for such listing. A Zoindependent agrees to not use 900 numbers, surcharge numbers, or other similar toll numbers for the purpose of marketing none of Zoilah’s Product, Applications, Websites, Opportunities, or Materials. A Zoindependent may not answer the telephone in any manner that would give callers a reason to believe they have reached the corporate headquarters or any other Zoilah company offices or company employee. Specifically, a Zoindependent shall NOT answer the telephone by saying “Zoilah” but shall answer indicating his or her status as a Zoindependent. Answering machines and voicemail, emails, faxes and all other forms of communication must also comply with this policy. Zoindependents who fail to comply with this policy are subject to disciplinary action as determined by Zoilah.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT OR PARTICIPATE IN THE AFFILIATION PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ZOILAH DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, SERVICE CLIENTS AND SERVICE PROVIDERS, BUT MAY CONDUCT SUCH BACKGROUND OR REGISTERED SEX OFFENDER CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND AFFILIATION PROGRAM ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ZOILAH EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ZOILAH MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY APPOINTMENTS, OR THE AFFILIATION PROGRAM WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
ZOILAH MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, APPOINTMENTS, SERVICE PROVIDERS, SERVICE CLIENTS, YOUR ACCRUAL OF ZOILAH CREDITS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, SERVICES OR AFFILIATION PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ZOILAH OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY SERVICE PROVIDERS OR SERVICE CLIENTS. YOU UNDERSTAND THAT ZOILAH DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW, USE OR VISIT ANY APPOINTMENTS. ZOILAH MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, SERVICE CLIENTS AND SERVICE PROVIDERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY ZOILAH. NOTWITHSTANDING ZOILAH'S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE SERVICE PROVIDERS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM SERVICE CLIENTS ON BEHALF OF THE SERVICE PROVIDERS, ZOILAH EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY SERVICE CLIENT OR OTHER THIRD PARTY.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY APPOINTMENTS VIA THE SITE, APPLICATION AND SERVICES, YOUR PARTICIPATION IN THE AFFILIATION PROGRAM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF ZOILAH WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER ZOILAH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT OR THE AFFILIATION PROGRAM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR YOUR PARTICIPATION IN THE AFFILIATION PROGRAM OR FROM YOUR LISTING OR BOOKING OF ANY SERVICE VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ZOILAH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE SERVICE PROVIDERS PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE ZOILAH SERVICE PROVIDER GUARANTEE, IN NO EVENT WILL ZOILAH'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY SERVICE VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR YOUR PARTICIPATION IN THE AFFILIATION PROGRAM AND IN CONNECTION WITH ANY SERVICE OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A SERVICE CLIENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A SERVICE PROVIDER, THE AMOUNTS PAID BY ZOILAH TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS ($100.00), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ZOILAH AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Zoilah and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking of an Service, or (iii) creation of a Listing; (d) the use, condition or rental of a Service by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Service; and (e) your participation in the Affiliation Program or your accrual of any Zoilah Credits.
Export Control and Restricted Countries
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List or Entity List. By using the Site, Application and Services, you represent and warrant that (i) neither you nor your listed Service is 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Site, Application and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Zoilah does not permit Listings associated with certain countries due to U.S. embargo restrictions.
Accessing and Downloading the Application from iTunes
The following applies to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):
You acknowledge and agree that (i) these Terms are concluded between you and Zoilah only, and not Apple, and (ii) Zoilah, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Zoilah and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Zoilah.
You and Zoilah acknowledge that, as between Zoilah and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Zoilah acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Zoilah and Apple, Zoilah, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Zoilah acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
If you make use of a Service or as Service Provider anyone who you feel is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Zoilah by contacting us with your police station and report number; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between Zoilah and you regarding the Site, Application, Services, Collective Content, and any bookings or Listings of Appointments made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Zoilah and you regarding bookings or listings of Appointments, the Site, Application, Services, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Zoilah's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Zoilah may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Zoilah (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms and your use of the Services will be interpreted in accordance with the laws of the State of Florida and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Miami-Dade County, Miami, Florida or a United States District Court, Southern District of Florida located in Miami, Florida for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
You and Zoilah agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Zoilah are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Zoilah otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Florida and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Zoilah otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Zoilah submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Zoilah will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Zoilah will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the "Modification" section above, if Zoilah changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Zoilah's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Zoilah in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Zoilah to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Zoilah. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Third Party Beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.
If you have any questions about these Terms or any App Store Sourced Application, please contact Zoilah via e-mail or in writing at 1900 N. Bayshore Drive, Suite 1A, No. 136, Miami, Florida 33132, United States of America.