Dated August 18, 2013
Welcome to Genbook, Inc.
Please review this user agreement carefully.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
You must register to access and use the Services. If you are registering on behalf of a company, by registering you agree that you have the requisite authority to register on behalf of such company. The email address you provide during your registration will be the login for your Genbook account. Each account must have a unique email address and you agree that you shall not attempt to create more than one account under the same email address.
By registering, you agree that you will use the Services only for the purposes advertised on the Genbook website or in other marketing material published by Genbook, that you are a valid business desiring to use the Services to advertise your business and generate online appointments from consumers using the Services, and that any contact information you provide, such as email addresses and phone numbers, is valid and active contact information for you.
In order to maximize the exposure of your business online and the number of appointments scheduled through the Services, Genbook may, at our sole discretion, enter into agreements with third party websites and businesses, create a profile page for your business on the Genbook website or on third party websites, optimize any current or future Internet listings for your business to take advantage of search engine marketing or lead generation opportunities, and perform any other acts we deem appropriate to increase traffic and use of the Services (the “Genbook Marketing Actions”).
The “Genbook Advertising Network” will include any and all search engine marketing or lead generation that Genbook undertakes on your behalf or to promote the Services and generate traffic to increase the number of appointments made through the Services, including but not limited to marketing and advertising effected through any of the Genbook Marketing Actions.
From time to time, at its sole discretion, Genbook may make specific offers to you to participate in the Genbook Advertising Network. The terms and conditions of these offers will be available to you at the time of the offer and acceptance of the offers will be at your discretion.
You shall be responsible for all customer service in connection with the Offer (except with respect to the operation of our websites) and for supplying all goods and services specified in the Offer and any customer loyalty programs, if any, associated with the Offer.
You will be able to select the maximum number of total Offers that you wish to promote and sell through the Services (“Total Offer Maximum”). Genbook uses commercially reasonable technical safeguards to monitor and enforce the Total Offer Maximum, but we cannot guarantee that unauthorized third parties will never defeat our security measures, or that our Services will at all times be capable of monitoring or enforcing the Total Offer Maximum.
When creating your Offer, you will be able to select an expiration date for the promotional value of the Offer (“Promotional Value Expiration”) or you may choose to indicate that the Offer never expires. Genbook reserves the continuing right, but shall not be obligated, to reject, revise, or discontinue promoting any Offer and to conform any Offer to our specifications or applicable law.
You agree that so long as an appointment is made by a customer for the redemption of an Offer before the Offer's Promotional Value Expiration, the Offer will be honored for the full Promotional Value without restriction, even though the services may be provided after the Promotional Value Expiration.
Partial redemptions: If applicable, and if a customer redeems an Offer for less than the Paid Value, you will be responsible for handling any unredeemed value as required by applicable law.
You agree that in providing the goods or services that are the subject of the Offer, you will not impose any extra or additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms set forth on the face of the Offer, including the Offer-Specific Terms.
Genbook reserves the right, at any time and at its discretion, to change any fees and any other pricing terms. Any changes shall be posted on the Genbook website and/or in your Genbook account and will be effective immediately.
Genbook will invoice you on a monthly basis, in advance, for all amounts due to Genbook. Each invoice shall set forth the fees to be incurred by you in the forthcoming month (a “Genbook Invoice”). We agree to invoice you within one week of the first day of the applicable calendar month (the “Invoice Posting Date”).
By adding a credit card to your account, either during registration or at any time thereafter, you warrant that such credit card is good and valid, and you authorize Genbook to charge such credit card for amounts due under the Genbook Invoices pursuant to the payment schedule set forth in this Section 7.
Payment Schedule: For each Genbook Invoice, Genbook will charge to the credit card listed in your account all amounts of such Genbook Invoice within seven (7) days after the Invoice Posting Date. Once an amount has been charged to your credit card, it is nonrefundable.
If, for whatever reason, Genbook charges your credit card pursuant to Section 7, above, and the payment does not go through, Genbook reserves the right to suspend your access to the Services. If you fail to pay the applicable invoice within 10 days of the date of suspension, or to otherwise negotiate a payment plan for all amounts then due, Genbook reserves the right to cancel your account. In the event Genbook cancels your account for non-payment, all amounts due and unpaid from you to Genbook for use of the Services shall become immediately due and payable. In the event of non-payment and the exhaustion of the procedures set forth in this section, Genbook reserves the right to seek payment using any remedies allowed to it by law.
If you wish to dispute any charge invoiced to you by Genbook, you agree to submit the disputed charge to us no later than five (5) business days after we have invoiced you for the disputed charge. You are responsible for timely reviewing any Genbook Invoice. You may submit a disputed charge by contacting us through the Genbook website, via the My Account Page when you are logged in, or by email, facsimile, telephone, or mail. We agree to review your message and work with you to find a timely solution.
In order to receive payments for Offers you must register with an authorized third party payment processor as determined by Genbook in its sole discretion. Genbook may notify you of any such authorized third party payment processor (or the un-authorization of any third party payment processor) from time to time. You represent and warrant that any information you provide to such third party payment processor is truthful, accurate, and current. You acknowledge that you are solely responsible for ensuring that any such information is current, and that you may not be able to receive payments for Offers if you fail to so inform such third party payment processor of any changes to your information, or otherwise provide inaccurate information. You further acknowledge that Genbook is not liable for any missed payments due to your failure to provide accurate and current information in connection with the information that you provide to an authorized third party payment processor. You acknowledge and agree that you are solely responsible for any payment processor fees, currency conversion fees, or other fees charged by any third party payment processor for the purpose of transferring payments to you. You are solely liable for any and all applicable local, state, or federal taxes associated with payments for your Offers.
Genbook reserves the right to contact you from time to time for feedback about the Services and for service and support related issues. We reserve the right to contact you through e-mail, facsimiles, text or voice messages, or notices posted on the Genbook website or messages posted in your Genbook account. Notices will be deemed effective at the time they are sent by Genbook or as of date they are posted, regardless of whether you actually read any such notices.
You may opt-out of receiving notifications regarding appointments through the Services by logging into your account and changing the notification settings; opting-out of such notifications, however, will limit the effectiveness of the Services. You may not opt-out of receiving notifications relating to support of the Services or other notices as required by law.
We retain all rights in and to, including without limitation, the copyrights, patents, and trade secrets, trademarks or service marks contained in or relating to the Services (collectively the “Genbook Intellectual Property”) that are the exclusive property of Genbook and/or its licensors. We do not transfer any rights in or to the Genbook Intellectual Property to you.
Content of the Services that incorporates or includes any of the Genbook Intellectual Property may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Genbook or the rightful owner, as applicable.
Confidential Information is any oral, written, graphic or machine-readable information disclosed by Genbook that is designated in writing to be confidential or proprietary or is otherwise reasonably understood to be confidential. Confidential Information shall include, but not be limited to, any and all data regarding the performance of any functionality of the Services. You agree to not disclose or use any Confidential Information without the prior written consent of Genbook, and to maintain the confidentiality of the Confidential Information.
It is your responsibility to use the Services properly and effectively. By using the Services, you warrant that you will use the Services only for the purposes advertised on the Genbook website, that you are a valid business desiring to use the Services to advertise your business and generate online appointments from customers using the Services, and that any contact information you provide, such as email addresses and phone numbers, is valid and active contact information for you. Any breach of this section will result in termination of your account. We reserve the right to pursue any remedies available to us at law or in equity for any breach of this Section.
You are responsible for ensuring that you can fulfill all appointments made through the Services and for communicating changes directly to your customers. You are responsible for managing availability for the online scheduling of appointments including settings for staff and services, bookable days and times for staff and services, and lead times as may be appropriate to prevent double-bookings and other events which would adversely affect your customers and their experience with the Services. You are responsible for reviewing your online appointments often and regularly. If you cannot honor any appointment made through the Services, you agree to promptly communicate such change to the relevant customers.
You are also responsible for all equipment required to access the Services, including (but not limited to):
When using the Services you must comply with all export, re-export and import laws and restrictions, including U.S. export laws and regulations, to which the Services are subject..
You may not use the Services in any manner that is illegal or harmful to the Services. Among other restrictions, you agree that you shall not, nor shall you allow any third party to:
Genbook believes in preventing and deterring unauthorized infringement of copyrighted materials. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement or that there is infringing material available through the Services, please notify Genbook’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Name: Roderick Moore
Attn: DMCA Notice
548 Market Street
San Francisco, California 94104
tel: (415) 227-9903
fax: (415) 227-9904
Materials, including but not limited to text, software, data, images, graphics, photos, audio, audiovisual, videos, and content of any nature provided by Genbook (“Content”) or by other users of the Services (“User Submissions”) to the Services website is owned by the party contributing such content. As a user of the Services, you are solely responsible for your own User Submissions. By transmitting your User Submissions, you represent that you have all rights and authorizations necessary to post, submit, display, produce, or otherwise transmit, such content. In connection with your User Submissions, you agree that you will not submit material that is or contains the intellectual property of a third party that you do not have permission to use.
You shall retain all of your ownership rights in your User Submissions; however, by submitting material to Genbook, you grant Genbook the irrevocable, fully transferable rights to use, reproduce, distribute, modify, transmit, prepare derivative works of, display and produce the material in connection with the Services and Genbook’s business, and to grant these rights to others. To the extent you do not have ownership rights to any of your User Submissions, you shall indemnify Genbook for any claim regarding Genbook’s use of your User Submissions.
Genbook does not guarantee any confidentiality with respect to any User Submissions and will not treat any User Submissions as confidential. When using the Services, you may be exposed to User Submissions from a variety of sources, and Genbook is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions, which may be inaccurate, infringing, offensive, indecent, or objectionable.
The Services may contain links to or allow you to access and use in connection with the Services third party websites and services (collectively, “Third Party Sites and Services”). Genbook does not control, review, approve, monitor or warrant such Third Party Sites and Services and is not responsible for nor can guarantee the content of such Third Party Sites and Services. Unless otherwise explicitly stated, the inclusion of any Third Party Sites and Services in the Services or on the Genbook website does not imply any endorsement by Genbook of Third Party Sites and Services or any association with their operators. You use all Third Party Sites and Services at your own risk. The applicable third party's terms and policies, including the third party's privacy and data gathering practices, apply to the Third Party Sites and Services. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites and Services.
Upon termination of your use of the Services for any reason, all of your rights to access and use any and all parts of the Services shall immediately terminate. In the event of such termination, you agree to remove any and all Content from all of your hard drives and any other storage media and to destroy all copies of the Content in your possession.
Your only remedy for any dispute with Genbook is to stop using the Services.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM GENBOOK. In the unlikely event that Genbook has not been able to resolve a dispute it has with you after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any Genbook claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms of Service, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the Judicial Mediation and Arbitration Services (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in San Francisco County, California, unless you and Genbook agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Genbook from seeking injunctive or other equitable relief from the courts as necessary to protect any of Genbook's proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS TERMS OF SERVICE, YOU AND GENBOOK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, .COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
A lack of enforcement will not result in waiver of any term. Also, no waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent default.
THE SERVICES ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. GENBOOK DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS THE SERVICES AT ALL TIMES OR PLACES, THAT GENBOOK WILL HAVE ADEQUATE CAPACITY FOR ALL USERS, OR THAT THE SERVICES WILL BE OPERABLE WITH YOUR EQUIPMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, GENBOOK, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, QUALITY, ACCURACY, FITNESS FOR PARTICULAR PURPOSES AND NON-INFRINGEMENT. GENBOOK DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY OFFERS PROVIDED TO CONSUMERS THROUGH THE SERVICES WILL BE ERROR-FREE OR THAT ANY SUCH OFFERS WILL RESULT IN ANY REVENUE OR PROFIT FOR YOU.
GENBOOK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY SITES AND SERVICES, AND GENBOOK WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY. YOU ACKNOWLEDGE AND AGREE THAT GENBOOK WILL NOT BE LIABLE, AND YOU AGREE NOT SEEK TO HOLD GENBOOK LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF THIRD PARTY SITES AND SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. THE SERVICES ARE OFFERED BY GENBOOK FROM THE UNITED STATES OF AMERICA. GENBOOK MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
IN NO EVENT SHALL GENBOOK, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF SERVICES CONTENT (INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY OFFERS PROVIDED TO CONSUMERS THROUGH THE SERVICE), (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES OR INTEROPERABILITY PROBLEMS, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT, (VII) USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, (VIII) YOUR USE, OR INABILITY TO USE, ANY PORTION OF THE SERVICES OR FOR ANY LOSS OR DAMAGE OF ANY KIND (INCLUDING YOUR DATA) INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, AND (IX) THIRD PARTY SITES AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
OUR AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS YOU'VE PAID GENBOOK IN THE SIX (6) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.