Client Service Agreement
This Client Service Agreement (this "Agreement") is entered into between TruZen Inc., a Delaware corporation ("TruZen") and the entity or person, (the "Client") (independently a "Party" and collectively the "Parties"). This Agreement shall be effective as of the date the Client selects "Accept" (the "Effective Date").
A. TruZen provides an online marketplace that enables independent providers of spa services (a "Service Provider") using the Platform (as defined below) to seek, receive, and fulfill requests for appointments from a TruZen user.
B. The Client seeks to find a professional to provide spa services ("Services") and to use the Platform.
C. The Client acknowledges and agrees that TruZen is a technology service provider that does not provide spa services or facilities.
Given the recitals above, and in consideration of the mutual promises and covenants herein, the Parties agree as follows:
1) Use of the Platform.
a) Platform. The "Platform" means TruZen's online marketplace and related services licensed by TruZen to the Client that enables Service Providers to seek, receive, and fulfill requests for Services by the Client; such platform services include access to the TruZen App and TruZen's software, websites, payment services, and related support service systems, as may be updated or modified from time to time. Included in the definition of "Services", TruZen offers the following features for its Service:
- i) Quick Book -- means TruZen matching a client's request to book spa services and the Service Provider's availability and provided Services.
c) Provision of Services. When the Platform is active, Client may search for and request Services from a Service Provider if a Service Provider is available, provides the requested types of Service, and fits the Client's Parameters. As between TruZen and the Client, the Client acknowledges and agrees that:
- i) The Client is solely responsible for determining the most effective, efficient, and safe manner to receive the Services; and
- ii) That the Client is solely responsible for payment of the Services.
- d) Disclosure of Information. The Client acknowledges and agrees that once his or her Service request is accepted, the Platform may provide certain information about the Client to a Service Provider, including but not limited to, the Client's profile picture and name. The Client acknowledges and agrees that if the Service Provider is an entity, the Client's information may be distributed to a third-party outside of TruZen's control and that the Service Provider may have its own privacy standards. The Client shall not contact a Service Provider for any reason except for the purpose of fulfilling the Services.
- e) Privilege to Use Platform. TruZen retains the right to, at any time and at TruZen's sole discretion, deactivate or otherwise restrict the Client from accessing or using the Platform in the event of a violation of this Agreement, the Client's disparagement of TruZen, the Client's act or omission that causes or may cause harm to TruZen's brand, reputation, or business as determined in TruZen's sole discretion, or for any other reason at TruZen's reasonable discretion. TruZen reserves the right to deactivate the Client's Login ID for any reason at its sole discretion. Subject to change from time to time, Client's privilege to use the Platform shall be governed by TruZen's cancellation policies that can be found at [LINK TO CANCELLATION POLICIES].
2) Client and Service Provider Matching.
- a) Matching Process. Truzen provides its Platform as a matching service between the Client's parameters and a Service Provider's Services and availability. The Client authorizes TruZen to match the Client with a Service Provider based on factors such as the Service Provider and Client location, the scheduling availability, the Services provided, the Client preferences, and platform efficiency, and to cancel an existing match and rematch based on the same considerations. Any decision by a Client to request or accept a Service Provider is a decision made in the Client's sole discretion and vice versa for the Service Provider. Each Service provided by a Service Provider to a Client shall constitute a separate agreement as described in Section 3.
- b) Client Parameters. The Client shall have the option to set a variety of parameters in regard to the Client's request for services. TruZen reserves the right to add, remove, or change the options provided to Clients. Possible Client parameters include, but are not limited to, gender, date and time for Services to be provided, and where the Client will be traveling from and the estimated driving time.
3) Service Provider and Client Relationship.
The Client acknowledges and agrees that a Service Provider's provision of the Services to the Client creates a direct business relationship between a Service Provider and the Client. TruZen solely enables Clients to arrange and schedule Services from the Services Provider through its matching services. The Client acknowledges and agrees that a Service Provider may have its own sub-contractors, employees, or agents that provide the Services directly to the Client. TruZen does not monitor, verify, or have control over a Service Provider's sub-contractors, employees, or agents' actions or professional qualifications. TruZen is not responsible or liable for the actions or inaction of a Service Provider or the Service Provider's sub-contractors, employees, or agents in relation to the Services. The Client shall have the sole responsibility for any obligations or liabilities to a Service Provider or third parties that arise from a Service Provider's Services. The Client shall be solely responsible for taking such precautions as may be reasonable and proper regarding any acts or omissions of a Service Provider, a Service Provider's sub-contractors, employees, or agents, or third party.
4) Platform Requirements.
The Client shall always maintain and update with TruZen the below information:
- a) Full legal name;
- b) A current profile picture;
- c) Phone Number;
- d) Address; and
- e) Date of birth.
5) Non-Discrimination Policy.
a) The Client shall not:
- i) Cancel an appointment with a Service Provider based on age, disability, race, color, ethnicity, national origin, religion, sexual orientation, gender identity, or marital status;
- ii) Impose any different terms or conditions based on age, disability, race, color, ethnicity, national origin, religion, sexual orientation, gender identity, or marital status; or
- iii) Post any review, rating, or make any statement that discourages or indicates a preference for or against a Service Provider on account of age, disability, race, color, ethnicity, national origin, religion, sexual orientation, gender identity, or marital status.
Nothing in this policy prevents the Client from turning down an appointment with a Service Provider on the basis of a characteristic that is not protected under the civil rights laws, closely associated with a protected class, or listed above in Section 5(a).
- b) Non-Compliance with Non-Discrimination Policy. If a particular review or request contains language contrary to this non-discrimination policy, the Client will be asked to remove the language and affirm his or her understanding and intent to comply with this policy and its underlying principles. TruZen may also, in its sole discretion, take any action to enforce its non-discrimination policy, including suspending or removing the Client from the Platform. If the Client improperly rejects a Service Provider on the basis of a protected class or uses language demonstrating that his or her actions were motivated by factors prohibited by this policy, TruZen will take steps to enforce this policy, up to and including suspending or removing the Client from the Platform.
- a) Rating Requests. The Client acknowledges and agrees that (i) after receiving Services, a Service Provider will be prompted by the Platform to provide a rating of the Client and the provision of Services to the Client and, optionally, to provide comments about the Client and the provision of Services and (ii) after receiving Services, the Client will be prompted by the Platform to provide a rating of a Service Provider and the Services provided and, optionally, to provide comments about a Service Provider and the Services provided.
- b) Sharing Rating. TruZen reserves the right to use, share, and display the Client's ratings and comments about a Service Provider in any manner in connection with the business of TruZen. The Client acknowledges and agrees that TruZen is a distributor (without any obligation to verify) and not a publisher of the Client's ratings and comments, provided that TruZen reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, including an individual's name or other personal information, or violate any privacy laws, other applicable laws, or TruZen's content policies.
- c) Rating Verification. The Client acknowledges and agrees that the Client is aware that some Service Providers are entities and may have multiple sub-contractors, employees, or agents providing the Services for the Service Provider. With this knowledge, the Client is aware that any ratings posted for such Service Providers may not reflect the level of service the Client may receive. The Client is solely responsible for vetting such Service Providers and the associated risks.
7) Payment Terms.
- a) Service Fees. A Service Provider or TruZen is entitled to charge a service fee for each instance of a completed Service ("Service Fee"). The Client agrees that the Service Fee is the only payment the Client is required to pay in connection with the Service unless the Client elects to pay gratuity.
- b) Payment Service Provider. The Client agrees to and accepts TruZen's choice of payment service provider for the purpose of paying the Service Fee and, depending on the region, applicable taxes and fees on the Client's behalf. TruZen reserves the right, in its sole discretion, to change its payment service provider. TruZen shall notify the Client of material changes regarding TruZen's chosen payment service provider. TruZen initially chooses to use Stripe as its payment service provider. TruZen may place a hold on the Client's credit card for the Service Fees 7 days before the appointment and will charge the Client on the day of the appointment.
c) Fee Adjustment. In its reasonable discretion, TruZen reserves the right to:
- i) Adjust the Service Fee for a particular instance of Services (e.g. Service Provider failed to properly end a particular instance of Service, technical error with the Platform); or
- ii) Charge or cancel the Service Fee for a particular instance of Services (e.g. Client is charged for Services that were not provided, in the event of a Service Provider complaint, fraud, Client or Service Provider misconduct, etc.).
- d) Platform Use Fee. In consideration of TruZen providing the Platform for the Client's use and benefit, the Client agrees to pay TruZen a service fee on a per Service transaction basis calculated as a percentage of the Service Fee as provided to you via email or otherwise made available electronically by TruZen from time to time (the "Platform Use Fee"). In the event regulations applicable to the Client's area require taxes to be calculated on the Service Fee, TruZen shall calculate the Platform Use Fee based on the Service Fee net of such taxes. TruZen reserves the right to change the Platform Use Fee at any time in TruZen's sole discretion and TruZen will provide the Client with notice in the event of such change. The Client's continued use after any changes to the Platform Use Fee shall constitute the Client's consent to such change.
- e) Cancellation Charges. This Section applies to all bookings. The Client agrees that the Client or a Service Provider may elect to cancel requests for Services that have been accepted by a Service Provider via the Platform up to 24 hours before the appointment. If a Client cancels an accepted appointment request within 30 minutes of acceptance or if the cancellation is made more than 24 hours from the appointment, the Client will not be charged a cancellation fee otherwise TruZen may charge a Client a cancellation fee on the Service Provider's behalf. If charged, this cancellation fee shall be deemed a Service Fee for the cancelled Services for the purpose of remittance to the Service Provider hereunder ("Cancellation Fee"). The Parties acknowledge and agree that as between TruZen and the Client, TruZen shall set the Cancellation amount.
- f) Receipts. As part of the Services, TruZen provides the Client a system for receiving receipts from a Service Provider for Services rendered. Upon the completion of Services, TruZen shall prepare an applicable receipt and issue such receipt to the Client on a Service Provider's behalf. Such receipts are also provided to a Service Provider. Receipts include the breakdown of amounts charged for the Services and may include specific information about a Service Provider, including the individual's name, contact information, and license information. Any corrections to the Client's receipt for Services must be submitted to TruZen in writing within 3 days after the completion of the Services. Absent such notice, TruZen shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Service Fee.
- a) License Grant. Subject to the terms and conditions of this Agreement, TruZen hereby grants the Client a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Platform solely for the purpose of obtaining Services from a Service Provider and tracking resulting Service Fees. All rights not expressly granted to the Client are reserved by TruZen.
- b) Restrictions. The Client shall not and shall not allow any other party to (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise provide or make available to any other party the Platform in any way; (ii) modify or make derivative works based upon the Platform; (iii) improperly use the Platform, including creating Internet "links" to any part of the Platform, "framing" or "mirroring" any part of the Platform on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Platform; (iv) reverse engineer, decompile, modify, or disassemble the Platform, except as allowed under applicable law; or (v) send spam or otherwise duplicative or unsolicited messages. In addition, the Client shall not and shall not allow any other party to, access or use the Platform to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Platform an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses, or worms or any program which may make multiple server requests per second, or unduly burden or hinder the operations or performance of the Platform; or (iv) attempt to gain unauthorized access to the Platform or its related systems or networks.
- c) Ownership. The Platform, including all intellectual property rights therein, are and shall remain (as between the Client and TruZen) the property of TruZen or its respective licensors. Neither this Agreement nor the Client's use of the Platform conveys or grants to the Client any rights in or related to the Platform, except for the limited license granted above. Other than as specifically permitted by TruZen in connection with the Services, the Client is not permitted to use or reference in any manner TruZen's company names, logos, products and service names, trademarks, service marks, copyrights, or other indica of ownership ("Marks and Names") for commercial purposes. The Client shall not try to register or otherwise use or claim ownership in any of TruZen's Marks and Names, alone or in combination with other letters, punctuation, words, symbols, and/or designs, or in any confusingly similar mark, name, or title for any goods or services.
- a) Discloser of Client Information. Subject to applicable law, TruZen may, but shall not be required to, provide to a Service Provider, the Client, an insurance company, relevant authorities, or regulatory agencies any information (including personal information and TruZen data) about the Client provided hereunder if: (i) there is a complaint, dispute, or conflict including an accident between a Service Provider and the Client; (ii) it is necessary to enforce the terms of this Agreement; (iii) it is required, in TruZen's sole discretion, by applicable law or regulatory requirements (e.g. TruZen receives a subpoena, warrant, or other legal process for information); (iv) it is necessary, in TruZen's sole discretion to protect the safety, rights, property, or security of TruZen, the Platform, or any third party; to protect the safety of the public for any reason including the facilitation of insurance claims related to the Platform; to detect, prevent, or otherwise address fraud, security, or technical issues; or to prevent or stop activity which TruZen, in its sole discretion, may consider to be or to pose a risk of being illegal, unethical, or legally actionable activity. The Client agrees that TruZen may retain the Client's personal information and data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated.
- b) Collection of Client Information. TruZen may collect the Client's personal data during the course of the the Client's application for, and use of, the Platform or may obtain information about the Client from third parties. Such information may be stored, processed, transferred, and accessed by TruZen, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with TruZen's legitimate business needs. The Client expressly consents to such use of personal data.
10) Non-solicitation of Service Provider.
During the Term of this Agreement and for 1 year after termination, the Client shall not, directly or indirectly solicit, contact, or attempt to solicit or contact, for employment, engagement, or providing Services or conducting outside business with any Service Provider that the Client initially connected with via TruZen's Platform. The Client shall not circumvent TruZen by independently attempting to communicate with and request Services from a Service Provider through alternative means after discovering a Service Provider on the Platform. If the Client is found to have breached this provision, TruZen reserves the right, in its sole discretion, to terminate this Agreement and remove or suspend for a period the Client from TruZen's Platform. The Client may contact a Service Provider that the Client had contact or a business relationship with prior to or outside of the Client's use of the Platform.
11) Client Representations and Warranties. The Client represents and warrants that:
- a) The Client has full power and authority to enter into this Agreement and the Client's obligations hereunder; and
- b) The Client has not entered into, and during the term will not enter into, any agreement that would prevent the Client from complying with this Agreement.
- A) TRUZEN PROVIDES AND CLIENT ACCEPTS THE PLATFORM ON AN "AS IS" AND "AS AVAILABLE" BASIS. TRUZEN DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT CLIENT'S ACCESS TO OR USE OF THE PLATFORM (I) WILL BE UNINTERRUPTED OR ERROR FREE OR (II) WILL RESULT IN ANY PROVISION OF SERVICES. TRUZEN FUNCTIONS AS AN ONLINE MARKETPLACE AND RELATED SERVICE ONLY AND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF A SERVICE PROVIDER OR A SERVICE PROVIDER'S SUB-CONTRACTORS, EMPLOYEES, OR AGENTS WHO MAY PROVIDE OR OFFER SERVICES TO THE CLIENT, AND TRUZEN DOES NOT SCREEN OR OTHERWISE EVALUATE A SERVICE PROVIDER OR A SERVICE PROVIDER'S SUB-CONTRACTORS, EMPLOYEES, OR AGENTS. TRUZEN FURTHER DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BY USING THE PLATFORM, THE CLIENT ACKNOWLEDGES AND AGREES THAT THE CLIENT MAY BE INTRODUCED TO A THIRD-PARTY THAT MAY POSE HARM OR RISK TO THE CLIENT, THIRD PARTIES, OR A SERVICE PROVIDER. THE CLIENT IS ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO USE OF THE PLATFORM. TRUZEN EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF A SERVICE PROVIDER, THE CLIENT, OR OTHER THIRD PARTY.
- B) TRUZEN DOES NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE PLATFORM. THE CLIENT ACKNOWLEDGES AND AGREES THAT THE PLATFORM MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON. FURTHER, THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND TRUZEN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES, OR LOSSES RESULTING FROM SUCH PROBLEMS.
- C) IN NO EVENT SHALL TRUZEN'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED 2 TIMES THE AGGREGATE AMOUNT PAID OR PAYABLE BY THE CLIENT PURSUANT TO THIS AGREEMENT.
The Client shall indemnify, defend (at TruZen's option), and hold harmless TruZen and its respective officers, directors, employees, agents, successors, and assigns, from and against all liabilities, expenses (including legal fees and costs), damages, penalties, fines, social security contributions, and taxes arising out of or related to: (a) the Client's breach of Client's representations, warranties, or obligations under this Agreement or (b) a claim by a third party (including a Service Provider, regulators, and governmental authorities) directly or indirectly related to the Client's receipt or request of the Services or use of the Platform.
14) Term and Termination.
- a) Term. This Agreement shall commence on the date accepted by the Client and shall continue until terminated as set forth herein.
- b) Mutual Termination. Either Party may terminate this Agreement (a) without cause at any time upon 7 days prior written notice to the other Party; (b) immediately, without notice, for the other Party's material breach of this Agreement; (c) immediately, without notice, in the event of insolvency or bankruptcy of the other Party, or upon the other Party's filing or submission of request for suspension of payment (or similar action or even) against the terminating Party.
- c) Termination by TruZen. TruZen may terminate this Agreement or deactivate the Client's Login ID immediately, without notice, to the Client in the event the Client no longer qualifies, under applicable law or the standards and policies of TruZen, to receive or request Services or otherwise set forth in this Agreement.
- d) Effect of Termination. Upon termination of the Agreement, the Client shall immediately delete and fully remove the Platform from the Client's devices.
- a) Modification. In the event that TruZen modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on the Client upon the Client's acceptance of the modified Agreement through continued use of the Platform. TruZen reserves the right to modify any information referenced at hyperlinks in this Agreement from time to time. The Client hereby acknowledges and agrees that, by using the Platform or any downloaded versions of the Platform, the Client is bound by any future amendments and additions to information in hyperlinks herein, or documents incorporated herein, including with respect the fee calculations. Continued use of the Platform after any such changes constitutes the Client's consent to such changes.
- b) Supplemental Terms. Supplemental terms may apply to the Client's use of the Platform, such as use policies or terms related to certain features and functionality, which may be modified from time to time ("Supplemental Terms"). The Client may be presented with certain Supplemental Terms from time to time. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
- c) Assignment. Neither Party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party; provided that TruZen may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent (a) to an affiliate or successor; or (b) to an acquirer of all or substantially all of TruZen's business, equity, or assets.
- d) Non-Waiver. No Party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver by any Party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any other subsequent breach or violation.
- e) Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
- f) Governing Law. This Agreement and the rights and obligations of the Parties hereto shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its conflicts of laws' provisions. The Parties consent to the exclusive personal jurisdiction of the federal and state courts located in King County, Washington, as applicable, for any matter arising out of or relating to this Agreement.
- g) Dispute Resolution. The Parties shall first attempt to resolve any dispute arising out of or relating to this Agreement informally amongst themselves or through formal mediation. If the Parties cannot resolve a conflict amongst themselves, then the matter shall be resolved by binding arbitration. Arbitration will be before a single arbitrator that the Client elects from a list of 3 arbitrators provided by TruZen. Arbitration will be performed under the rules adopted by the American Arbitration Association at the time a claim is filed with an arbitrator. Arbitration will take place in Seattle, Washington. An arbitration judgment may be entered into and enforced by a court of competent jurisdiction, which judgment shall include the costs and attorneys' fees for the prevailing Party at arbitration.
- h) Attorneys' Fees. If a Party seeks to enforce its rights under this Agreement through legal proceedings including arbitration, the non-prevailing Party shall pay all costs and expenses incurred by the prevailing Party, including, without limitation, attorneys' fees.
- i) Severability. If an adjudicator holds that any provision of this Agreement is illegal, invalid, or unenforceable then (1) that provision will be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (2) this Agreement's remaining provisions shall not be affected.
- j) Headings. The section headings herein are for reference purposes only and shall not otherwise affect the meaning, construction, or interpretation of any provision of this Agreement.
- k) Notices. Any notice delivered by TruZen to the Client under this Agreement will be delivered by email to the email address associated with the Client's account or by posting on the portal available to the Client on the Platform and be effective the date TruZen emails or posts the notice. Any notice delivered by the Client to TruZen under this Agreement will be delivered by contacting TruZen at email@example.com and be effective the date the Client receives confirmation of TruZen's receipt.
- l) Entire Agreement. This Agreement, together with any other documents or exhibits incorporated herein by reference, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous agreements concerning such subject matter, whether written or oral.
- m) Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.