Last Updated: 1/21/2015
These Terms of Service, and the rules, policies, terms and conditions set forth in, referred to and/or linked herein, all of which are incorporated herein by reference, are, collectively, the"Agreement".
This Agreement constitutes a legal agreement between you ("you" or "User") and WaitNot LLC. ("WaitNot" or "us"). This Agreement governs your use of our services and platform that facilitates communications between Users offered through our mobile applications offered by us (the "Apps"). Our services, platform, and Apps are collectively referred to as the "Application".
By using or registering with the Application or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as we may publish from time to time. Please read this Agreement carefully. If you do not agree to be bound by this Agreement, you will not have any right to use the Application. WaitNot's acceptance is expressly conditioned upon your assent to this Agreement in its entirety. If this Agreement is considered to be an offer by us, acceptance is expressly limited to this Agreement.
By using the Application, you represent and warrant that: (i) you are at least 18 years old, are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
To the extent permitted and except where prohibited by applicable law, these Terms of Service include:
Your agreement that the Application is provided "as is" and without warranty (Section 15).
Your agreement that the Application is solely a communications platform providing a method for Professional Services to be booked, that all Professional Services are performed by third parties, and that WaitNot has no liability for any Professional Services or any acts or omissions of third parties (Sections 1 and 15), with the exception of WaitNot's Money-Back Guarantee (Section 3(d)).
Your agreement to release WaitNot from liability based on claims relating to Services and otherwise (Section 15) and your agreement to the limitation of time within which a claim can be brought (Section 20).
Your agreement to indemnify WaitNot from claims due to your use, misuse or inability to use the Application, the Professional Services, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to the Application (Section 16).
Your agreement that either party may compel binding arbitration for most types of disputes, and your agreement to submit to an informal dispute resolution process for at least 30 days prior to the initiation of any claim (Section 17).
Your agreement that no claims can be adjudicated on a class basis (Section 17).
Your consent to any modifications or amendments to this Agreement (Section 21).
1. The Application is Solely a Venue for Communications.
The Application is a communications platform for enabling the connection between individuals seeking to obtain services ("Clients") and/or individuals or businesses seeking to provide services ("Providers"). Clients and Providers together are referred to as "Users". Those certain services requested by the Clients, which are to be completed by the Providers, are hereinafter referred to as "Professional Services". WaitNot does not itself provide Professional Services. The provision of all Professional Services is up to the Providers, which may be scheduled through use of the Application. WAITNOT, THROUGH THE APPLICATION, OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH PROFESSIONAL SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SUCH PROFESSIONAL SERVICES ITSELF OR ACT IN ANY WAY AS A SERVICE PROVIDER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY PROFESSIONAL SERVICES PROVIDED TO THE Client BY PROVIDERS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE. WAITNOT IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY THIRD PARTY PROVIDER OR RETAILER.
2. Personal Information; User Accounts.
a. Collection of your Personal Information.
When you complete a registration with us, you will be required to provide certain personal information. You agree that such information will be true, accurate and complete, and that you will update this information promptly when it changes. If you provide any information that is untrue or inaccurate, not current, or incomplete, or if we suspect that your information is untrue or inaccurate, not current, or incomplete, we may, in our sole discretion, suspend or terminate your right to access any material for which registration is required.
b. Account, Password and Security.
You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any username, password and account provided by you or us for accessing the Application. You are solely and fully responsible for all activities that occur under your password or account, except that WaitNot may, in certain circumstances, access your account to make changes that you request, such as rescheduling a Service appointment. WaitNot has no control over the use of any User's account by the User or third parties and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must contact us immediately. Nothing in this section shall affect WaitNot's rights to limit or terminate the use of the Application, as provided below in section 4(b).
c. Proof of Identity.
You will provide us with such proof of identity as we may reasonably request from time to time.
d. Text Messages and Phone Calls.
By providing your phone number and using the Application, we may, to the extent permitted by applicable law, use your mobile phone number for calls and, if such phone number is a mobile number, for text (SMS) messages, in order to assist with facilitating the requested Professional Services. Standard call or message charges or other charges from your phone carrier may apply to calls or text (SMS) messages we send you.
e. Emails. WaitNot may send you confirmation and other transactional emails regarding the Professional Services. WaitNot may also send you emails about services that we think might interest you ("Promotional Emails"). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
Users of the Application contract for Professional Services directly with other Users. WaitNot is not a party to any contracts for Professional Services. The Application facilitates these contracts by supplying a medium through which Clients can connect with Providers, schedule Professional Services, and make payments for Professional Services ("Payments"). Clients are obligated to pay in advance for the Professional Services they order through the Application. We will charge the Client's credit card according to the amount the Client has agreed to on the Application with respect to all Professional Services fees or expenses associated with a Professional Service, and the Client hereby authorizes us to charge the credit card on file in the Client's Application account for such amounts. We will use third party services to process credit card information. We retain the right, in our sole discretion, to place a hold on the Client's credit card for an ordered or completed Professional Service transaction. Seventy-two (72) hours after a Professional Service is completed, if there is no complaint by the Client, we will mark the Professional Service as closed. No refunds or credits will be provided once the Client's credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. Clients will be liable for all transaction taxes on the Professional Service(s) provided (other than taxes based on WaitNot's income).
4. Term and Termination; Cancellation of Professional Services; Survival.
This Agreement shall continue in full force and effect until such time as it is terminated by you or by us.
b. Termination by WaitNot.
We may terminate this Agreement or terminate or suspend your right to use the Application at any time for any or no reason (including, without limitation, in the event that we believe that you have breached this Agreement or any policy posted on the Application, or if we otherwise find that you have engaged in inappropriate and/or offensive behavior (collectively, "Prohibited Conduct")) by providing you with written or email notice of such termination to the physical or email address you have provided us, and termination will be effective immediately upon such notice. Except in the event that we terminate or suspend your right to use the Application due to any Prohibited Conduct, we will refund in full any payments for WaitNot services or Professional Services that have not been performed or completed. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. When terminating your account, WaitNot may delete the account and all the information in it. You have no ownership rights to your account.
c. Termination by You.
You may terminate this Agreement by completely and permanently ceasing to use the Application (provided that there are no outstanding Professional Services ordered under your password or account) and by closing any account you have opened on the Application. If you attempt to terminate this Agreement while there are still outstanding Professional Services ordered under your password or account, this Agreement shall not terminate until such Professional Services have been performed or otherwise canceled as permitted by WaitNot.
d. Policy for Service Cancellation by Client.
WaitNot's cancellation policy for Professional Services is as follows: Clients may cancel their scheduled Professional Service appointments through the Application at any time, subject to the Provider’s cancellation policy. Cancellation may incur a fee per the Provider’s policy. Client agrees to pay the cancellation fee in full at the time of cancellation.
All provisions that should by their nature survive the expiration or termination of this Agreement, including without limitation, Sections 8, 10 and 14-22, shall so survive.
6. Community Areas.
The Application may contain blogs, message boards, applications, reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users (collectively, "Community Areas"). All submissions made to Community Areas within the Application will be public, and we will not be responsible for any information or materials posted in Community Areas. You may only use such Community Areas to send and receive messages and material that are relevant and proper to the applicable forum and that comply with this Agreement. "Your Information" is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the Application, including without limitation, information and materials that are posted or transmitted for use in Community Areas. You are solely responsible for Your Information, and we are merely a passive conduit for your online distribution and publication of Your Information. You hereby represent and warrant that Your Information: (a) will comply at all times with this Agreement, including but not limited to Section 7 (Rules for Use of the Application) below, and with Section 2 (Personal Information; User Accounts) above; and (b) will not create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers (ISPs), customers, or other partners or suppliers. You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Your Information that is posted to Community Areas from or through your account on the Application, including but not limited to all images, videos, musical works and text included in such postings. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Application. We reserve the right to remove postings from Community Areas in our sole discretion.
7. Rules for Use of the Application.
During the term of this Agreement, Clients may use the Application for your personal use only (or for the use of a person, including a company or other organization that you validly represent). Clients may use the Application to book Professional Services solely with respect to a location where the Client is legally authorized to have Professional Services performed. Clients may not use the Application for any other purposes or in connection with any commercial endeavors whatsoever without our express prior written consent. Clients agree that an order for Professional Services is an offer, which is only accepted when the Client receives a confirmation of the order. Providers agree to provide Professional Services in accordance with all applicable laws and regulations and with the Service Agreement. You shall NOT use the Application (including but not limited to any Community Areas) to do any of the following:
a. Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
b. Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party.
c. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including but not limited to our staff and other Users.
d. Post a review or rating unless such review or rating contains your independent, honest, genuine opinion.
e. Use the Application or any Professional Service for any purpose or in any manner that is in violation of local, state, national, or international law.
f. Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
g. Advertise or offer to sell any goods or services for any commercial purpose or solicit employment or contract work which is not relevant to services offered through the Application. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to Professional Services facilitated through the Application without express written permission from us.
h. Use the Application to collect usernames and/or email addresses of members by electronic or other means without our express prior written consent.
i. Conduct or forward surveys, contests, pyramid schemes, or chain letters.
j. Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
k. Post the same note repeatedly (referred to as 'spamming'). Spamming is strictly prohibited.
l. Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the Application, or post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
m. Restrict or inhibit any other User from using and enjoying the Application.
n. Imply or state that any statements you make are endorsed by us, without our prior written consent.
o. Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with the Application, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Application in any manner, or attempt to do any of the foregoing.
p. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
q. Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
r. Upload content that provides materials or access to materials that are obscene, adult or sexual or that exploit anyone, and in particular people under the age of 18, in an abusive, violent or sexual manner.
s. Register to use the Application under different usernames or identities, after your account has been suspended or
t. Mirror or archive any part of the Application or any content or material contained on the Application without WaitNot's written permission.
8. No Employment. WaitNot provides a software platform which allows you to connect with independent Providers. WaitNot is not the employer of any Professional. You acknowledge that we do not supervise, direct, or control a Professional’s work or Professional Services performed in any manner. A Professional provides services to you as an independent contractor, and is not an employee, joint venture, partner, agent, or franchisee of WaitNot for any purpose whatsoever.
9. Special Promotions
Changes to Promotions. We may from time to time provide certain promotional opportunities to Clients. All promotions will be run at our sole discretion, and can be activated, modified or removed at any time by us without advance notification.
10. Intellectual Property Rights.
The Application, and the information, data, content and materials, which it contains ("WaitNot Materials"), are the property of WaitNot and/or its affiliates and licensors, excluding User-generated content, which WaitNot has a right to use as described below. The WaitNot Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. WaitNot and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the WaitNot Materials. Any use of WaitNot Materials, other than as expressly permitted herein, is prohibited without the prior permission of WaitNot and/or the relevant right holder. The service marks and trademarks of WaitNot, including without limitation getwaitnot.com and the WaitNot logo are service marks owned by WaitNot. Any other trademarks, service marks, logos and/or trade names appearing on the Application are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the Application without the express prior written consent of the owner.
11. Copyright Complaints and Copyright Agent.
WaitNot respects the intellectual property of others, and expects Users to do the same. WaitNot will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on or in connection with the Application infringe upon that person's or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to WaitNot a properly submitted copyright notice as indicated below, WaitNot will investigate, and if it determines, in its discretion, that the material is infringing, WaitNot will remove the content and may terminate the access of the User who posted such content to the Application in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following:
(i) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant's ownership of the work, should be included.
(ii) A statement specifically identifying the location of the infringing material, with enough detail that WaitNot may find it on the Application. Please note: it is not sufficient to merely provide a top level URL.
(iii) The complete name, address, telephone number and e-mail address of Complainant.
(iv) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law.
(v) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; (vi) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed.
WaitNot's contact information for notice of alleged copyright infringement is:
Or via Mail:
Attn: Copyright Agent
9300 South IH35 STE A-500 #405
Austin, TX 78748
12. The App / Mobile Devices
a. The Application may allow you to access our services, download our Apps, upload content to the Application, and receive messages on your mobile device (collectively"Mobile Features"). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
c. WaitNot is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. WaitNot reserves the right to terminate the use of the Apps or any other aspect of the Application should you be using the Apps or the Application with an incompatible or unauthorized device.
d. App Store Sourced Application.
(i) With respect to Apps accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. WaitNot reserves all rights in and to the Apps not expressly granted to you under this Agreement.
(ii) You acknowledge and agree that (i) this Agreement is valid between you and WaitNot only, and, that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) WaitNot, not Apple, is solely responsible for the App Store Sourced Application and the Application Content.
(iii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application.
(iv) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application.
(v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and WaitNot, WaitNot and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claims.
(vii) You acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement for App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement for App Store Sourced Applications against you as a third-party beneficiary thereof.
(viii) Without limiting any provisions of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
13. Modifications to the Application.
We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Application or any content or information on the Application with or without notice. We will not be liable to any party for any modification or discontinuance of the Application.
The term "Confidential Information" shall mean any and all of WaitNot's trade secrets, confidential and proprietary information, personal information and all other information and data of WaitNot that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. The Application contains secured components that are accessible only to those who have been granted a user name and password by WaitNot. Information contained within the secure components of the Application is confidential and proprietary. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of WaitNot and agree that you will not use Confidential Information other than as necessary for you to make use of the Application as expressly permitted by this Agreement and only during the term of this Agreement.
15. Disclaimer of Warranties; Limitation on Liability.
a. USE OF THE APPLICATION IS ENTIRELY AT YOUR OWN RISK.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WAITNOT NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH THE APPLICATION; NOR DO THEY MAKE ANY WARRANTY AS TO ANY PROFESSIONAL'S REGISTRATION, PROFESSIONAL ACCREDITATION OR LICENSE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, PROFESSIONAL SERVICES, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE APPLICATION OR THIS AGREEMENT. ACCESS TO THE APPLICATION IS PROVIDED FREE OF CHARGE AS A COURTESY. NEITHER WAITNOT NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE APPLICATION (INCLUDING BUT NOT LIMITED TO THE CONDUCT OF ANY CLIENTS OR PROVIDERS). NEITHER WAITNOT NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE APPLICATION IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. WAITNOT AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
b. NO LIABILITY.
YOU AGREE NOT TO HOLD WAITNOT, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES' AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, "MEMBERS") LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, "LIABILITIES") THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE APPLICATION, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), SERVICES, ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY WAITNOT OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL WAITNOT OR MEMBERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APPLICATION OR ANY SERVICES, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. WAITNOT AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE APPLICATION, THE PROFESSIONAL SERVICES OR THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT WAITNOT OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO WAITNOT DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
WAITNOT AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE APPLICATION. THE APPLICATION IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT THE APPLICATION CONNECTS A USER TO A THIRD PARTY PROVIDER FOR THE PURPOSES OF PROVIDING SERVICES HEREUNDER, WAITNOT WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE WAITNOT FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER. BECAUSE WAITNOT IS NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY PROFESSIONAL SERVICE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE WAITNOT AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
d. ADDITIONAL DISCLAIMER.
THE QUALITY OF THE PROFESSIONAL SERVICES THROUGH THE USE OF THE APPLICATION IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO ULTIMATELY PROVIDES SUCH PROFESSIONAL SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE APPLICATION, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE APPLICATION, AND SUCH PROFESSIONAL, AT YOUR OWN RISK.
NOTHING IN THIS AGREEMENT OR THE APPLICATION CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
BY USING THE APPLICATION, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE APPLICATION.
YOU ACCEPT THAT, AS A CORPORATION, WAITNOT HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST WAITNOT'S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE WAITNOT'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS WAITNOT.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
You hereby agree to indemnify, defend, and hold harmless WaitNot, its licensors, and each such party's directors, officers, parent organizations, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly:
(i) your use or misuse of or inability to use the Application, any Merchandise and/or any Professional Service,
(ii) your violation of this Agreement,
(iii) your violation of any applicable law or regulation;
(iv) your violation of the rights of another (including but not limited to Providers), and
(v) Your Information and content that you submit or transmit through the Application. WaitNot reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of WaitNot.
17. Mutual Arbitration Agreement.
a. Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and WaitNot, including without limitation any dispute or claim related to or arising out of this Agreement ("Dispute"), you and WaitNot may attempt to negotiate any Dispute informally (the "Informal Negotiations") before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this Section 17 is your email address and/or physical address that you have provided to WaitNot. WaitNot's address for such notices is: firstname.lastname@example.org and/or by mail to WaitNot LLC., Attn: Legal, 9300 South IH35 STE A-500 #405 Austin, TX 78748
b. Arbitration. If a Dispute is not resolved through Informal Negotiations, you and WaitNot agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration ("Arbitration Agreement"). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the "Class Action Waiver" described in Section d below.
c. Excluded Disputes.
You and WaitNot agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.
d. WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION.
You and WaitNot agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
e. Rules/Standards Governing Arbitration Proceeding.
A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the Austin, Texas, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award.
You and WaitNot agree that if any portion of this section entitled "Mutual Arbitration Agreement" is found illegal or unenforceable, that portion will be severed and the remainder of this section 17 will be given full force and effect.
18. Governing Law; Jurisdiction.
Except for the Arbitration Agreement in Section 17, which is governed by the Federal Arbitration Act, this Agreement is governed and interpreted pursuant to the laws of the State of Texas, United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, You agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of Travis, Texas.
This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement shall inure to the benefit of permitted successors and assigns.
20. General Provisions.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. A failure by us to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and WaitNot with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement. You agree that regardless of any statute or law to the contrary, any Dispute, claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such Dispute, claim or cause of action arose or be forever barred. All notices provided by a party in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to WaitNot. WaitNot's address for such notices is: email@example.com and/or by mail to WaitNot LLC.., Attn: Legal, 9300 South IH35 STE A-500 #405 Austin, TX 78748. The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall not be modified except in writing signed by both parties or by means of a new posting by WaitNot, as described below. This Agreement shall be interpreted as if jointly drafted by the parties. WaitNot shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond WaitNot's reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Providers to perform, flood, fire, explosion, acts of terrorism or accident.
21. Changes to this Agreement.
We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Application. Your continued use of the Application following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
22. Contact Information.
If you have any questions regarding this Agreement, please contact us at firstname.lastname@example.org.