PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN TOPKUTZ AND YOU WHICH GOVERNS YOUR USE OF THE SERVICES. YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF SERVICE AND YOUR REPRESENTATION THAT YOU ARE 18 YEARS OF AGE OR OLDER. IF YOU OBJECT TO ANYTHING IN THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.
If you are accepting these Terms of Service and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant to TopKutz that you have full power and authority to do so. These Terms expressly supersede prior agreements or arrangements with you. TopKutz may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
The Services are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Unauthorized reproduction or distribution of the Services, or any portion of them, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. The Services are licensed, not sold.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH TOPKUTZ ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate disclosures or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against TopKutz on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against TopKutz, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against TopKutz by someone else.
AGREEMENT TO BINDING ARBITRATION BETWEEN YOU AND TOPKUTZ
You and TopKutz agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and TopKutz, and not in a court of law.
You acknowledge and agree that you and TopKutz 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. Unless both you and TopKutz otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and TopKutz each retain the right to bring an individual action in small claims court and 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.
RULES AND GOVERNING LAW
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Texas.
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 - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Texas 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.
LOCATION AND PROCEDURE
Unless you and TopKutz otherwise agree, the arbitration will be conducted in Harris County, Texas. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and TopKutz 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. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. 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. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. TopKutz will seek to recover attorneys' fees and expenses if TopKutz prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions above, regarding consent to be bound by amendments to these Terms, if TopKutz changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing TopKutz written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided by (a) mail for service of process, Attn: TopKutz or (b) by email from the email address associated with your Account to: email@example.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and TopKutz in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
SEVERABILITY AND SURVIVAL
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
THE TOPKUTZ SERVICES
TopKutz is a platform that connects the licensed barbers (collectively or individually, "Professionals") providing hair and grooming services ("Grooming Services") with clients seeking such services ("Clients" or "you"). The Professionals and Clients are both users of the Services provided by TopKutz and are hereinafter referred to collectively as "Users."
TopKutz solely provides a platform for Professionals and Clients to connect and serves only as a medium to facilitate the provision of On-Demand Grooming Services. TopKutz does not provide or contract for Grooming Services, and Professionals and Clients contract independently for the provision of Grooming Services. Each Client is solely responsible for selecting the Professional, the Grooming Services to be provided and designating the location at which Grooming Services will be performed. Any decision by a Client to receive Grooming Services or by a Professional to provide Grooming Services is a decision made in such person's sole discretion and at their own risk. All Users understand and acknowledge that (i) the Company does not conduct background checks on Clients and (ii) any provision of Services in a private location inherently increases the risks involved for both Clients and Professionals.
TopKutz does not have control over the quality, suitability, reliability, timing, durability, legality, failure to provide, or any other aspect whatsoever of any Grooming Services provided by Professionals nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Professionals or Clients. TopKutz makes no representations or warranties whatsoever with respect to Grooming Services offered or provided by Professionals or requested by Clients through use of the Services, whether in public, private, or offline interactions, or about the accreditation, registration or licensing of any Professional. You understand that TopKutz does routinely screen its Users, inquire into the background of its Users and may attempt to verify information provided by any User.
TopKutz does not verify or confirm that any User is who they claim to be or is accurately representing themselves and does not verify or confirm any representations with respect to Grooming Services on the Services. TopKutz does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Services. Notwithstanding the foregoing, TopKutz may, but is not obligated to, check the background and experience of Professionals via third-party background check services and first party interviews, including but not limited to a verification of identity and a comprehensive criminal background check, and may terminate a Professional based on any information discovered during such background checks and first party interviews. Whether or not TopKutz conducts a background check or first party interview on a Professional, each Client must decide whether a Professional is suited to such Client's needs and should exercise caution and common sense to protect their personal safety and property, just as they would when interacting with anyone you don't know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES AND YOU HEREBY RELEASE THE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.
In connection with certain services, including Grooming Services, for which reservations are made available on the Services, Clients are required to enter credit card or other payment information, and may be charged fees for cancelled and/or missed appointments. The Professionals are only allowed to do so in accordance with any policy posted on such Professional's TopKutz page at the time of your booking. By entering your payment information when requested, you authorize TopKutz and its payment processors to charge and process the fees and charges assessed in connection with your reservations in accordance with the policy described on the Professional's TopKutz page at the time of your booking. While TopKutz takes what it believes to be reasonable efforts to ensure secure transmission of your information to third parties who assess and process payments, TopKutz is not responsible for any fees or charges assessed by third parties or any errors in the processing of payments by third parties, including any errors that result from third-party negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information.
If you cancel or don't show up for an appointment, your credit card may still be charged in accordance with the cancellation policy of the Professional posted on such Professional's TopKutz page at the time of your booking, at the Professional's discretion. TopKutz facilitates the payment transaction per these Terms between you and each Professional, but is not responsible for mediating any resulting disputes. TopKutz has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by TopKutz, in each case in TopKutz's sole discretion.
Although the Services are intended to provide a Professional's availability in real-time, it is possible that a scheduling conflict may occur that requires the Professional to reschedule your reservation. Creation of a reservation using the Services is not a guarantee that the Professional will honor the reservation as scheduled.
TopKutz cannot guarantee availability of the Services to any User.
TopKutz does confirm that Professionals are licensed to perform the Grooming Services offered by them on our Website. However, when Professionals create accounts with TopKutz, Professionals certify to TopKutz that they are a licensed professional, or if the Professional is a barbershop, merchant or other business entity, all of such Professional's employees, independent contractors or agents who are providing Grooming Services each are a licensed professional, that they are legally able to provide the Grooming Services they offer to Clients on our Website and mobile application, and that their business information is correctly represented on TopKutz. TopKutz reserves the right to remove or hide any incorrect, out of date, or illegal information from profiles, as well as remove or hide the entire profile itself at any time.
By creating an account with TopKutz (an "Account"), you are granted a right to use the Services provided by TopKutz subject to the restrictions set forth in these Terms of Service and any other restrictions stipulated to you by us in writing. You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an account. Our registration process will ask you for information including your name and other personal information, as well as at least one valid payment method supported by TopKutz. In registering for an Account, you agree to provide true, accurate, current and complete information about yourself as prompted by the Services' registration process and as requested from time to time by TopKutz (such information, "Registration Data"). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Services, or otherwise advise us promptly in writing of any changes or updates to your Registration Data. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Services.
We reserve the right to suspend or terminate the Account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
You agree to maintain your Account solely for your own use. You agree that you will not allow another person to use your Account to access or use the Services under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your Account username and password and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. We are not liable for any harm caused by or related to the theft of your Account username and password, your disclosure of your Account username and password, or your authorization to allow another person to access or use the Services using your Account username and password. Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account including any charges incurred relating to the Services. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Services cannot be guaranteed.
NETWORK ACCESS AND DEVICES
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. TopKutz does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
LINKING YOUR ACCOUNT
As part of the functionality of the Services, you may link your Account with online accounts you may have with third party service providers (each such account, a "Third Party Account") by either: (i) providing your Third Party Account login information through the Services; or (ii) allowing TopKutz to access your Third Party Account, as is 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 TopKutz and/or grant TopKutz 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 TopKutz to pay any fees or making TopKutz subject to any usage limitations imposed by such third party service providers. By granting TopKutz access to any Third Party Accounts, you understand that (i) TopKutz may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Services via your Account, including without limitation any friend lists, and (ii) TopKutz may submit and receive additional information to your Third Party Account to the extent you are notified when you link your Account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be Content (as defined below) for all purposes of these Terms of Service. 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 may be available on and through your Account on the Services. Please note that if a Third Party Account or associated service becomes unavailable or TopKutz's access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Services. You will have the ability to disable the connection between your Account and your Third Party Accounts at any time. 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. TopKutz makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and TopKutz is not responsible for any SNS Content.
The Services may contain links to third party websites that are not owned or controlled by TopKutz. TopKutz has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, TopKutz will not and cannot censor or edit the content of any third-party site. By using the Services, you expressly relieve TopKutz from any and all liability arising from your use of any third-party website.
You acknowledge and agree that the Services may access your email address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Services. At your request made via email to firstname.lastname@example.org, TopKutz will deactivate the connection between the TopKutz Services and your Third Party Account and any information stored on TopKutz's servers that was obtained through such Third Party Account will be hidden, except the username and profile picture associated with your Account.
TERMINATION OF ACCOUNTS
TopKutz reserves the right, in its sole discretion, to terminate your Account if you violate these Terms of Service or for any reason or no reason at any time. We may also suspend your access to the Services and your Account (including the funds in your Account) if you (a) have violated the terms of these Terms of Service, any other agreement you have with TopKutz, including without limitation the EULA, or TopKutz's policies, (b) pose an unacceptable credit or fraud risk to us, (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct, or (d) for any other reason in TopKutz's sole discretion.
If your Account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by these Terms of Service, (b) to immediately stop using the Services, (c) that any licenses granted to you under these Terms of Service shall end, (d) that we reserve the right (but has no obligation) to hide or delete all of your information and account data stored on our servers, and (e) that TopKutz shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion or hiding of your information or account data. You agree that TopKutz may retain and use your information and account data as needed to comply with investigations and applicable law.
We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services. Any termination of these Terms of Service does not relieve you of any obligation to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in these Terms of Service.
TopKutz is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent or otherwise invalid as determined in TopKutz's sole discretion ("Fraudulent Actions"). By using the Services, you hereby release TopKutz from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify TopKutz of any Fraudulent Actions which may affect the Services. TopKutz reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, Fraudulent Actions.
PAYMENT PROCESSING SERVICES
The Services allow Clients to pay and Professionals to accept payments for Grooming Services, including Card-based payments initiated with Cards bearing the trademarks of MasterCard International Inc. , Visa Inc., American Express Company, and Discover Bank (collectively, the "Networks") through a payment service provider retained by the Company (the "PSP"). We are not a bank and we do not offer banking services as defined by the United States Department of Treasury.
TopKutz facilitates the processing of payments Professionals receive from Clients. This means that we collect, analyze and relay information generated in connection with these payments.
You authorize us to process payments in accordance with the Services, using the preferred payment method designated in your Account, after which you will receive a receipt by email. Users of the Service will be required to provide their credit card or bank account details to Company and the PSP. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that TopKutz may use a secondary payment method in your Account, if available.
Once you receive confirmation through the Service or via email that a Grooming Service has been scheduled with a Professional, you agree to authorize the Company to provide your payment details to the PSP for processing of payments, out of pocket expenses owed to a Professional, any tip or gratuity, if applicable, and the service fees and trust and safety fees owed to Company for the use of the Service. You may be charged a cancellation fee through the PSP if you book a Grooming Service, but cancel it before it is completed. Charges paid by you are final and non-refundable, unless otherwise determined by TopKutz.
You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on a Third Party Provider’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback.
THIRD PARTY PAYMENT SERVICE PROVIDER
Users will be required to provide their credit card or bank account details to the Company and the PSP. As a condition of TopKutz enabling payment processing services through the PSP, you agree to provide TopKutz accurate and complete information about you and/or your business, and you authorize TopKutz to share it and transaction information related to your use of the PSP services.
TopKutz uses Stripe, Inc. (Stripe) for payment processing services. By using the Stripe payment processing services you agree to Stripe’s Terms of Service available at stripe.com.
Company reserves the right, in its sole discretion (but not the obligation), to (i) place on hold any payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
UNAUTHORIZED OR ILLEGAL USE
We may decide not to authorize or settle any transaction that you submit to us if we believe in our sole discretion that the transaction is in violation of these Terms of Service or any other TopKutz agreement, or that it exposes Professionals, other TopKutz Users, the PSP or TopKutz to harm. Harm includes fraud and other criminal acts as determined by TopKutz in our sole discretion. If we reasonably suspect that your Account has been used for unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Account, and any of your transactions with law enforcement.
TopKutz works with any US-issued and most non-US issued credit, debit, prepaid, or gift cards ("Cards") with a Visa, MasterCard, American Express, or Discover logo. We may remove or add Cards that we accept at any time without prior notice. We will generally only process Cards that receive an authorization from the applicable Network and Card issuer.
If applicable, you agree to pay the applicable fees listed on our Fee Schedule available at http://www.TopKutzApp.com for use of the Services ("Fees"). Subject to the terms of these Terms of Service, we reserve the right to change our Fees immediately upon notice. You must agree to the change in Fees to continue to use the Services. To withdraw your consent, you will need to close your Account. All balances and all Fees, charges, and payments collected or paid through the Services are denominated in US dollars.
Professionals, as a separate entity from TopKutz, are solely responsible for all customer service issues relating to such Professional's goods or services, including without limitation, any Grooming Services, order fulfillment, order or appointment cancellation, returns, rebates, functionality and warranty, and feedback concerning experiences with such Professional, any personnel, their policies or processes. As between Clients and TopKutz, TopKutz is solely responsible for customer service issues relating to any Account, payment, Card processing, debiting or crediting.
The Company may from time to time provide certain programs, promotions, opportunities, sweepstakes and contests to Clients and Professionals ("TopKutz Programs"), descriptions of which can be found at http://www.TopKutzApp.com. TopKutz may at any time in its sole discretion, change, modify, add to, supplement or delete the terms and conditions of any TopKutz Program, including without limitation changing the name, fees and eligibility requirements to participate in such TopKutz Program. The Company will endeavor to notify you of any material changes by email, but will not be liable for any failure to do so. In any case, the liability of any of Company's partners pursuant to such TopKutz Programs shall be limited as described in these Terms of Service.
The TopKutz Programs may, among other things, offer certain benefits to Clients for referring Professionals or Clients to the Services. The TopKutz Programs may offer certain premium services for additional fees to certain Users. Currently, each User will have the choice to join that TopKutz Program, however, in the future, the participation in certain of the TopKutz Programs may become mandatory for certain Users.
The Company's general terms and conditions for promotional offers (including offers where you must redeem a promotional code as part of the offer) that are not otherwise described or made available on the Website or mobile application can be found http://www.TopKutzApp.com.
If any future changes to these Terms of Service are unacceptable to you or cause you to no longer be in compliance with these Terms of Service, you must terminate, and immediately stop using the Services.
At times and under circumstances in Company's sole discretion, the Company may issue to certain Users gift cards ("Gift Cards") that can be used to pay for Services, including the Grooming Services, and fees or expenses associated with the Services. Gift Cards are not replaceable if lost or stolen and have no expiration date, but in certain states, after a period of time, we may be required to remit the cash associated with unused Gift Card balances to certain states pursuant to their abandoned property laws. Once we have remitted such cash to a state, if someone tries to redeem the Gift Card, it may no longer be redeemed and we may direct them to that state's government instead. Gift Cards are not redeemable by the Company for cash except as required by applicable law.
If you wish to redeem your Gift Card and you can do so under applicable law, simply send your Gift Card along with a self-addressed envelope to Intermix Enterprises, LLC, Attn: TopKutz, PO Box: 2251 Cypress, Texas 77410.
We'll verify your address, confirm that your Gift Card balance qualifies you for redemption, and send you a check for the exact amount in the envelope provided. If we determine that the Gift Card is not required to be redeemed under applicable law, or we can't verify your residency, we'll return your Gift Card in the envelope provided. Company will be unable to redeem or return your Gift Card without a self-addressed envelope and is not responsible for mail that doesn't arrive at the address provided and cannot guarantee delivery in any way after submittal to the US Postal Service.
A Gift Card cannot be combined with any other Gift Cards, gift certificates or other coupons for any given individual transaction on the Website. A Gift Card cannot be used as a credit or debit card. Company reserves the right to limit quantities of Gift Cards purchased by any person or entity and to cancel a Gift Card if it believes that the Gift Card was obtained through fraudulent or unauthorized means.
No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. You cannot "reload" (i.e., you cannot add value/balance to your Gift Card at this time). If a Gift Card holder's purchase exceeds the amount of that Gift Card's balance, the Gift Card holder must pay the difference by another means. Unused Gift Card balances are not transferable. Company reserves the right to correct the balance of a Gift Card if Company believes that a billing error has occurred. Company disclaims all liability for any such billing errors. Gift Cards and their use are subject to these Terms of Service, and use of a Gift Card constitutes acceptance hereof. Unused Gift Card balances are not transferable.
USE OF SERVICES; LIMITATIONS AND CHANGES TO THE SERVICES
We may change, modify, suspend, or discontinue all or any part of the Services at any time, with or without reason. You acknowledge that the operation of the Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and TopKutz shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Services. TopKutz has no obligation to maintain or update the Services or to continue producing or releasing new versions of the Services.
We will make reasonable efforts to keep the Services operational 24 hours a day/7 days a week, except for: (i) planned downtime (of which we will endeavor to provide at least 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
As a User of the Services, you agree to follow all applicable rules and laws as outlined by this Terms of Service.
When you publish content or information using the "public" setting, it means that everyone, including people outside of the TopKutz community, will have access to that information and we may not have control over what they do with it.
We always appreciate your feedback or other suggestions about TopKutz, but you understand that we may use them and you hereby grant us all rights to such suggestions without any obligation to compensate you for them (just as you have no obligation to offer them).
We do our best to keep TopKutz safe and spam free, but can't guarantee it. In order to help us do so, you agree not to:
send or otherwise post unauthorized commercial communications (such as spam) on the Services.
collect Users' content or information, or otherwise access the Services, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.
engage in unlawful multi-level marketing, such as a pyramid scheme, on the Services.
upload viruses or other malicious code.
solicit login information or Account IDs or access an account belonging to someone else.
bully, intimidate, or harass any User.
post content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence.
develop, advertise or otherwise market alcohol-related or other mature content.
use TopKutz to do anything unlawful, misleading, malicious, or discriminatory.
do anything that could disable, overburden, or impair the proper working of TopKutz or the Services, such as a denial of service attack.
facilitate or encourage any violations of these Terms of Service.
To ensure we are able to provide a service to our users, we need to make sure our pages are accurate and up-to-date. To help us do so, you agree to:
keep your Registration Data and contact information accurate and up-to-date.
keep your Account IDs and Account information confidential and to not share your login information or Account IDs, let anyone else access your Account, or do anything else that might jeopardize the security of your Account.
You should not share any protected health information with service providers via the Services. The Services are not intended to be used to communicate protected health information, and it is not intended to be compliant with the Health Insurance Portability and Accountability Act (HIPAA). The term "protected health information" means any information that relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual. If you do share any protected health information, you do so at your own risk.
The Services contain content and technology of the Company that is protected by copyright, trademark, patent, trade secret and other laws. The Company owns intellectual property rights to any protectable part of the Services, including but not limited to the design, artwork, logos, functionality, and documentation (collectively, the "Company Property"). You may not copy, modify, or reverse engineer any part of the Services or the Company Property.
In order to operate the Services, the Company needs to make certain use of your publicly posted Content. Therefore, by posting, uploading or submitting to TopKutz, or making available for inclusion in publicly accessible areas of TopKutz, any text, images, photos, graphics, audio or video, including any content protected by intellectual property rights (collectively, "Content"), you represent that you have full authorization to do so. You also hereby grant TopKutz a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, distribute, reproduce, modify, adapt, publicly perform, publicly display and make derivative works of such Content in connection with the Services and any services or products affiliated with the Services, regardless of the form of media used or of whether such services or products now exist or are developed in the future. This license exists only for as long as you elect to continue to include such Content on TopKutz and will terminate at the time such Content is removed from the Services by you or by TopKutz; provided that the license will not terminate and will continue notwithstanding any removal of the Content or termination of your use of the Services to the extent that TopKutz needs to use such Content in connection with any investigation or in compliance with any laws.
You agree not to post any images containing written text or text overlays. Images may not have symbols or text-images anywhere in the photo, including but not limited to shapes, logos, or emoticons, etc. TopKutz reserves the right to remove or hide or change any images without notice.
When you delete Content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed Content may persist in backup copies for a reasonable period of time (but will not be available to others).
You acknowledge that all derivative designs and artwork which utilize the Company's logo or other Company Property (collectively, "Derivative Works") are the sole property of the Company. No other rights are granted to you with respect to the Company Property other than those rights granted explicitly herein, including with respect to any Derivative Works.
Any Content posted by a User belongs to the person that posted such Content. You may use any Content posted by you in any way without restriction. You may only use Content posted by others in the ways described in these Terms of Service.
The Company reserves the right to remove or hide any Content from the Services, at its sole discretion.
The Company respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the Accounts of Users who the Company, in its determination, believes have repeatedly infringe on others' rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to the Company's copyright agent via email to email@example.com or by mail to Intermix Enterprises, LLC, Attn: TopKutz, PO Box: 2251 Cypress, Texas 77410:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
description of where the material that you claim is infringing is located on the site, including a url link;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized or consented to by the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is completely accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.
The Company reserves the right to send Clients a newsletter from time to time if they opt-in to receiving one. This communication will be highly targeted based on how each Client uses TopKutz and will be designed to inform Clients of how to get more value from the Services.
As part of the Services, the Company offers Professionals the option to send SMS and email messages to their Clients to communicate about an upcoming appointment. By agreeing to these Terms of Service and using such tools, each Professional represents that it has permission from each Client to send SMS and email notifications and that each Professional takes full responsibility for adhering to each Client's preference with respect to such notifications.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU ARE FULLY AND SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS AND YOU AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO TAKE REASONABLE PRECAUTIONS IN ALL ACTIONS AND INTERACTIONS WITH OTHER PROFESSIONALS AND CLIENTS AND IN THE PROVISION OR RECEIPT OF GROOMING SERVICES. TOPKUTZ IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. TOPKUTZ IS UNDER NO OBLIGATION TO, AND DOES NOT ROUTINELY, SCREEN ITS USERS, INQUIRE INTO THE BACKGROUND OF ITS USERS OR ATTEMPT TO VERIFY INFORMATION PROVIDED BY ANY USER. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS. PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON THE SERVICES OR THROUGH THE SERVICES OR RELEASE TO OTHERS. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER PARTICIPANTS OR USERS.
IT IS POSSIBLE FOR OTHERS TO OBTAIN PERSONAL INFORMATION ABOUT YOU DUE TO YOUR USE OF THE SERVICES OR GROOMING SERVICES, AND THAT THE RECIPIENT MAY USE SUCH INFORMATION TO HARASS OR INJURE YOU. WE ARE NOT RESPONSIBLE FOR THE USE OF ANY PERSONAL INFORMATION THAT YOU DISCLOSE ON THE SERVICES OR THROUGH THE SERVICES. YOU UNDERSTAND THAT IN USING THE SERVICES, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD-PARTY INFRASTRUCTURE THAT IS NOT UNDER TOPKUTZ'S CONTROL (SUCH AS THIRD-PARTY SERVERS). TOPKUTZ MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURE.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TOPKUTZ AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TOPKUTZ MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICES OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TOPKUTZ MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SUITABILITY, RELIABILITY, TIMING, DURABILITY, LEGALITY, OR ANY OTHER ASPECT OF GROOMING SERVICES OFFERED OR PROVIDED BY PROFESSIONALS OR REQUESTED BY CLIENTS THROUGH THE USE OF THE SERVICES WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS OR ABOUT THE ACCREDITATION, REGISTRATION OR LICENSE OF ANY PROFESSIONAL.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE FOR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOPKUTZ OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
LIMITATION OF LIABILITY AND RELEASE
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TOPKUTZ OR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS AND DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) GROOMING SERVICES FACILITATED BY THE SERVICES OR ANY INTERACTIONS BETWEEN USERS, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY) OR ANY DISPUTE WITH ANY USER; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (IV) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF THE SERVICES OR YOUR DATA OR TRANSMISSIONS; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
TOPKUTZ EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS RELATED TO OR ARISING FROM THE USE OF THE SERVICES. BECAUSE TopKutz IS NOT INVOLVED IN THE ACTUAL INTERACTIONS BETWEEN PROFESSIONALS AND CLIENTS OR IN THE PROVISION OF ANY GROOMING SERVICES, YOU HEREBY RELEASE AND FOREVER DISCHARGE TOPKUTZ AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER USER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF GROOMING SERVICES OR OTHERWISE.
You agree to defend, indemnify and hold harmless the Company and its affiliates, officers, directors, employees, agents, partners and licensors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including but not limited to attorney's fees) arising from or relating to: (i) your use of and access to the Services; (ii) Grooming Services facilitated by the Services or any interaction between you and another user; (iii) your violation of any term of these Terms of Service; (iv) your violation of any rights of a third party, including without limitation any copyright, intellectual property, or privacy right; or (v) any third-party claims or damages relating to death, personal injury or emotional distress arising from or related to use of the Services. This defense and indemnification obligation will survive the termination of these Terms of Service and your use of the Services.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
These Terms of Service, including all referenced and/or incorporated exhibits or policies, programs and guidelines, constitutes the entire agreement between you and the Company concerning the subject matter herein and the use of the Services and supersedes any and all previous agreements, written or oral, between you and the Company, including previous versions of these Terms of Service.
The Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of these Terms of Service and all referenced and/or incorporated exhibits or policies, programs and guidelines. The Company will endeavor to notify you of any material changes by email, but will not be liable for any failure to do so. If any future changes to these Terms of Service Fare unacceptable to you or cause you to no longer be in compliance with these Terms of Service, you must terminate, and immediately stop using the Services. Your continued use of the Services following any revision to these Terms of Service constitutes your complete and irrevocable acceptance of any and all such changes.
The Company may assign these Terms of Service or any other agreement with you in whole or part at any time.
These Terms of Service and the relationship between you and the Company shall be governed by and construed in accordance with the laws of the State of Texas, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Texans to assert claims under Texas law whether that be by statute, common law, or otherwise. These provisions are only intended to specify the use of Texas law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Texas law to you if you do not otherwise reside in Texas. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause or to any arbitrable disputes as defined therein. Instead, as described above, the Federal Arbitration Act shall apply to any such disputes.
Any failure of the Company to enforce or exercise a right provided in these Terms of Service is not a waiver of that right.
Should any provision of these Terms of Service be found invalid or unenforceable, the remaining terms shall still apply.
You and the Company both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within NINETY (90) DAYS after such claim or cause of action arose or be forever barred.