Last updated Jan 4, 2024

 

Please read these Terms of Service (collectively with the Privacy Policy, the “Agreement” or “Terms of Service”) fully and carefully before using the mobile or web applications (collectively, the “Application” or “App”) and any services, products, features, content or applications (together with the Application, the “Services”) offered by Brownce LLC (“Brownce,” “we,” “us” or “our”). These Terms of Service set forth the legally binding terms and conditions under which you, may access and use the Services.

 

The Brownce Services and App provide a communications platform that enables connections between Clients and Providers. “Clients” are individuals and/or businesses seeking to obtain short-term beauty-related or other services from Providers and are therefore clients of Providers, and “Providers” are individuals or businesses seeking to perform such services for Clients. Clients and Providers together are hereinafter referred to as “Users.” If you agree on the terms of providing or receiving services with another User, you and such other User form a “Provider Contract” directly between the two of you as set forth in more detail in Section 3 below. You acknowledge and agree that your use of any and any services, products, features, content or applications other than (or additional to) the Application offered by or for Brownce may be governed by separate terms of service and privacy policies.

 

Acceptance of Terms of Service

 

  1. By registering for and/or using the Services in any manner, including but not limited to downloading or browsing the Application, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Services by Brownce, each of which is incorporated by reference, and each of which may be updated from time to time without notice to you.

  2. Certain of the Services may be subject to additional terms and conditions specified by Brownce from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.

THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “DISPUTE RESOLUTION” SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF SERVICE AND WITH RESPECT TO ANY “DISPUTE” (DEFINED BELOW) BETWEEN YOU AND US. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN THE “DISPUTE RESOLUTION” SECTION BELOW. ADDITIONALLY, THESE TERMS OF SERVICE INCLUDE YOUR CONSENT TO RELEASE BROWNCE FROM LIABILITY BASED ON CERTAIN CLAIMS AS FURTHER DESCRIBED IN THE “INDEMNIFICATION; RELEASE” SECTION BELOW. 

1. Eligibility. You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services or otherwise provide any personal information to Brownce. If you are under 18 or the legal age of majority in your jurisdiction, your legal parent or guardian must agree to these Terms of Service on your behalf. If your parent does not read and accept these Terms of Service on your behalf, you may not, under any circumstances or for any reason, use the Services or otherwise provide any personal information to Brownce. If you are under the age of 18 and accept the terms of service, you are confirming that your legal guardian has read and accepted these Terms of Service on my behalf. You must not be a convicted sex offender. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.

2. Registration. To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information, including valid financial account information, and keep your Account information updated. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.

 

3. Communications. 

  1. Marketing Communications. The Company reserves the right to send Providers and 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 Brownce and will be designed to inform Clients of how to get more value from the Services.

  2. Notifications. As part of the Services, the Company may send Providers and Clients push notifications and email messages for various reasons such as but not limited to reminding them of an upcoming appointment, an appointment request, a new message in the message center, etc. By agreeing to these Terms of Service and using such tools, Provider represents that it has permission from each Client to send SMS and email notifications and that the Provider and Client take full responsibility for adhering to this service.

 

As part of the Services, the Company may also utilize SMS messages for two-factor authentication to enhance the security of user accounts. This additional layer of security helps protect your account from unauthorized access by requiring verification through a unique code sent via SMS. By using this two-factor authentication feature, you acknowledge and agree to the Company sending SMS messages for the purpose of account security. It is essential to ensure the confidentiality of the received codes and promptly complete the authentication process. If you encounter any issues or have concerns about the two-factor authentication process, please contact our support team at support@brownceapp.com for assistance. Your commitment to the secure use of our Services is appreciated.

 

We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). As always, message and data rates may apply for any messages sent to you from us and to us from you. You may receive messages including but not limited to requests for appointments, appointments booked, reminders for appointments, tips, and payment receipts. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. If you have any questions regarding privacy, please read our Privacy Policy available at https://www.brownceapp.com

 

  1. User Messaging. Effective communication is fundamental to Brownce’s platform functionality, connecting Clients and Providers seamlessly. In this section, we outline the stringent standards governing User Messaging. From ensuring professional conduct to safeguarding privacy and enforcing consequences for violations, this framework is designed to foster a secure and respectful environment. Users are encouraged to familiarize themselves with these guidelines to enhance their experience and maintain the integrity of our communication platform.

    1. User Communication Standards. Users, including Clients and Providers, must maintain a standard of communication marked by professionalism, integrity, and respect. Compliance with relevant laws, regulations, and the terms of this agreement is mandatory, with potential disciplinary actions for non-compliance.

 

  1. Prohibited Content. Brownce explicitly forbids Users from sharing content violating the terms, encompassing defamatory, offensive, or intellectual property rights-infringing material. Users should exercise caution to align their communications with these guidelines.

 

  1. User Responsibilities and Representations. Both Clients and Providers bear responsibility for the accuracy of information shared through the messaging feature, committing to refrain from deceptive practices. The platform reserves the right to take corrective actions for neglecting these responsibilities.

 

  1. Monitoring and Moderation Authority. Brownce retains the authority to monitor, review, and moderate messages, ensuring compliance with the outlined terms. Actions, such as content removal or account termination, may be taken in cases of suspected non-compliance.

 

  1. Privacy and Confidentiality Assurance. Upholding the privacy of User messages is paramount. The platform pledges confidentiality, implementing robust measures to secure information. Users are urged to safeguard personal data during messaging interactions.

 

  1. Reporting Mechanism and Investigations. Users are encouraged to report violations promptly. Thorough investigations and appropriate remedial actions will be undertaken based on reported violations to ensure a fair and impartial process.

 

  1. Consequences of Violations. Violations may result in disciplinary actions, including warnings, suspension, termination, or legal action, depending on the infraction's nature and severity.

 

  1. Dispute Resolution Protocol. Disputes arising from messaging interactions are subject to Brownce's resolution mechanisms. Users must engage in good faith efforts for efficient resolution through the provided channels.

 

  1. Amendments to Guidelines. Brownce reserves the right to amend messaging guidelines. Users will be notified and continued use after notification constitutes acceptance of revised terms.

 

4. Services. 

a. Brownce Services. The Application and Services enable Brownce to provide a forum to individual Clients and Providers, who can use the Services to buy and/or offer certain beauty and other services and to engage in certain communications through the Services. Brownce is not involved in Provider Contracts, neither as a contractual party nor as agent or intermediary. It is the sole responsibility of Provider to (i) provide protection and maintain safeguards of the security, confidentiality and integrity of Client data and (ii) provide representations, warranties and guarantees and assume all responsibilities for any services provided by Contractor to Clients through the Services or otherwise in accordance with any applicable Provider Contracts and laws. All transactions are solely between Provider and Clients (or its clients and customers outside of the Services), and Brownce is only responsible for providing and maintaining the Services to enable potential or existing Clients to search, choose and initiate purchases from Provider. Brownce is not responsible or liable for any loss or damage of any sort incurred as the result of any such transactions, and Provider shall release and hold Brownce harmless from any and all liability arising from or in connection with any services provided by Provider through the Services or to Clients, any such transactions or Provider Contracts.

PROVIDERS ARE INDEPENDENT BUSINESS PEOPLE AND/OR OWNERS. PROVIDERS ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF BROWNCE. BROWNCE DOES NOT PERFORM PROVIDER SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SUCH SERVICES. BY CONNECTING PEOPLE AND BUSINESSES SEEKING SERVICES WITH SERVICE PROVIDERS, BROWNCE OPERATES AS AN ONLINE MARKETPLACE THAT CONNECTS CLIENTS WITH PROVIDERS WHO WISH TO PERFORM A VARIETY OF SERVICES AND/OR PRODUCTS.

USERS HEREBY ACKNOWLEDGE THAT BROWNCE DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL OR MONITOR A PROVIDER’S WORK AND EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY FOR THE WORK AND SERVICES PERFORMED BY OR FOR PROVIDERS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE.

Any reference on the Services to a Provider being licensed or credentialed in some manner, or "badged," “reliable,” “reliability rate,” “elite,” “great value,” "background checked," “vetted” (or similar language) designations indicates only that the Provider has completed a relevant account process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Brownce of such Provider’s skills or qualifications or whether they are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for Clients to evaluate when they make their own decisions about the identity and suitability of Providers whom they contact or interact with via the Brownce Services. 

The Services enable connections between Users for the fulfillment of Provider Contracts. Brownce is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Provider services, Providers or Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings or reviews provided by Users with respect to each other. Brownce makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the services requested or services provided by, or the communications of or between, Users identified through the Brownce Services, whether in public or private, via on- or off-line interactions, or otherwise howsoever.

b. Provider Services.  Provider will provide certain information, such as Provider’s services available, costs for services, Provider availability, business listing, links to Provider websites, Provider biography, Provider images and geographical areas serviced by Provider (collectively, the “Provider Profile”), in order to enable Brownce to host such Provider Profile on, and to permit Clients to communicate with Provider about Provider Contracts (including potential projects and invoices) using, the Services. Provider shall provide such Provider Profile, including its data, content and format, in compliance with all the specifications and/or standards as required by Brownce and any applicable Provider Contract. 

You acknowledge and agree that a legally binding contract with another User (the “Provider Contract”) is formed when you and that User agree on the terms of a certain Provider services. The terms of the Provider Contract include the terms set forth in this Section 3, the engagement terms proposed and accepted on the Services, and any other contractual terms accepted by both the Provider and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section 3, and do not expand Brownce’s obligations or restrict Brownce’s rights under this Agreement. Brownce is not a party to any Provider Contract and the formation of a Provider Contract will not, under any circumstances, create an employment or other service relationship between Brownce and the Provider, nor will it create an employment relationship between the Client and the Provider. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Brownce. Brownce’s role, beyond enabling connections between Clients and Providers via its Services, is to act as a limited payment collection agent for the Provider, to facilitate payment for Provider Services on behalf of the Provider through the Brownce Services using the Payment Processor. In acting as the limited payment collection agent for Provider Services on the Brownce Services, Brownce disclaims any other agency or authority to act on behalf of the Provider, and assumes no liability or responsibility for any acts or omissions of the Provider, either within or outside of the Brownce Services.

Where approved in advance by the Client, the Provider is not obligated to personally perform the Provider services. Providers may engage assistants, helpers, subcontractors or other personnel (collectively “Provider Assistants”). For safety reasons, such Provider Assistants shall have been background checked through the Brownce Services. A Provider’s failure to comply with this provision shall be a violation of these Terms of Service and could lead to removal from the Services. The Provider assumes full and sole responsibility for the acts and omissions of such Provider Assistants and is fully responsible for the lawful payment of all compensation, benefits and expenses of Provider Assistants, if any, and for all required and applicable tax withholdings as to such Provider Assistants. Clients are responsible for confirming with their Provider that any Provider Assistants are registered Providers on the Brownce Services, and Clients understand that they are entering into separate Provider Contracts with the Provider and Provider Assistant.

The Client shall pay their Providers(s) in full for all Provider services via the Payment Processor as indicated on the Brownce Services, at the rates agreed to by the parties in the Provider Contract. Each User agrees to comply with the Provider Contract and this Agreement during the engagement, performance and completion of Provider services.

c. User Representations and Warranties. All Users represent and warrant that:

  1. You are at least of the legally required age in the jurisdiction in which you reside (18 years of age or older for U.S. based users), and are otherwise capable of entering into binding contracts;

  2. 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;

  3.  You have read, understand, and agree to be bound by these Terms of Service and the Privacy Policy;

  4. You will respect the privacy (including without limitation private, family and home life), property, and data protection rights of Users and will not record (whether video or audio or otherwise) any Provider services or any interaction by or with any User and/or Brownce in connection with the Services without the prior written consent of Brownce and/or the relevant User, as applicable;

  5. You will fulfill the commitments you make to other Users, communicate clearly and promptly through the Services (including any chat thread), be present and/or available at the time you agree upon with your Provider or Client as the case may be, and only utilize the third-party payment service provider specified or approved by Brownce to make or receive payment for services provided through the Services (the “Payment Processor”);

  6. You will act professionally and responsibly in your interactions with other Users;

  7. You will use your real name or business name and an up-to-date photo on your profile;

  8. When using or accessing the Services, you will act in accordance with all applicable local, state, provincial, national, or international law or custom and in good faith;

  9. You will not use the Services for the purchase or delivery of alcohol, or any other controlled or illegal substances or services;

  10. 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; and

  11. Other than as fully and promptly disclosed in writing to Brownce, you do not have any motivation, status, or interest that Brownce may reasonably wish to know about in connection with the Services, including without limitation, if you are using or will or intend to use the Services for any journalistic, academic, investigative, or unlawful purpose.

  12. HIPAA Notice: Please refrain from disclosing any confidential health information to service providers through the Service. The Services are not designed for the purpose of transmitting protected health information and do not comply with the regulations set forth by the Health Insurance Portability and Accountability Act (HIPAA). The term "protected health information" refers to any data pertaining to an individual's current, past, or future physical or mental health, the provision of healthcare services, or payment for healthcare services. If you choose to share any protected health information, you assume full responsibility for any associated risks.

Providers additionally represent and warrant that:

  1. When using the Services, you are operating as a sole proprietor, partnership, limited liability company, limited liability partnership, corporation or other business entity; 

  2. You are customarily engaged in an independently established business of the same nature as the services performed for Clients through the Services, and maintain an independent clientele;

  3. You have the unrestricted right to work in the jurisdiction in which you will be performing services;

  4. If the Provider services are performed in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration;

  5. You are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Provider Contracts or providing services to Clients;

  6. You have any and all insurance required to operate your business and provide your services;

  7. You will honor your commitments to other Users on the Services, including by responding to invitations promptly; performing the services as agreed upon with your Client; and providing timely, high-quality services to your Clients;

  8. You will only offer and provide services for which you have the necessary skills and expertise, and provide those services safely and in accordance with all applicable laws.

4. Fees. You agree to pay applicable fees in connection with your use of the Services, as posted by Brownce, as may be updated from time to time or as agreed upon by you and Brownce in a separate agreement (such fees, “Brownce Fees”). Any modification of or addition to the existing Services may be subject to additional charges, which shall be posted through the Services. If any amount due from you to Brownce under this Agreement is not paid within thirty (30) days after the applicable due date, in addition to any other remedies available to Brownce, Brownce may suspend your access to the Services, in whole or in part, until Brownce receives payment of the overdue amount. All amounts payable to Brownce under this Agreement shall be paid in full without set-off, deduction or other withholding of any amount that may be due to you. All of your payment obligations hereunder are non-cancelable, and fees paid by you hereunder are non-refundable. Brownce’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your payments and/or sales of services hereunder.

 

You must provide and keep up to date current, complete, and accurate payment account (including in the event of a change in billing address, account or card number or financial institution), and you must promptly notify us if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your account user name or password.]

Users of the Brownce Services contract for services directly with other Users. Brownce will not be a party to any contracts for such services. Payment for such services through the Brownce Services is made directly from the Client to the Provider via the Payment Processor, and not by Brownce. Brownce is not obligated to compensate Provider for Client’s failure to pay for services. 

All payments, service charges, and fees must be paid through the Payment Processor. Users of the Brownce Services will be required to provide their payment method details to Brownce and the Payment Processor. 

Providers are responsible for accurately invoicing their Clients within 24 hours of the work being performed, even if the services are not completed in their entirety. Clients will be responsible for paying the invoice(s) for Provider service (the “Invoice(s)”), which will include the pricing terms of the services provided by the Provider, and Provider will be required to set up an account with the Payment Processor, which may require any or all of the following: registration with the PSP, agreement with the terms of service of the Payment Processor (the “Payment Processor Agreement”), and completion of a vetting process and/or account validation at the request of the Payment Processor. By accepting these Terms of Service, Provider agrees that they have downloaded or printed, and reviewed and agreed to, the Payment Processor Agreement. Please note that Brownce is not a party to the Payment Processor Agreement and that you, the Payment Processor and any other parties listed in the Payment Processor Agreement are the parties to the Payment Processor Agreement and that Brownce has no obligations, responsibility or liability to any Provider or other party under the Payment Processor Agreement. Brownce’s current Payment Processor is PayPal, whose terms of service may be found here.

To help prevent fraud and safeguard User information from the risk of unauthorized access, Brownce and/or the Payment Processor may validate an account before activation and prior to each booking. As part of the validation process, temporary charges may be placed on the account associated with the User and then refunded within 1-3 business days. Due to the difference in Payment Processor and credit card issuer requirements, this temporary charge may vary depending on the estimated value of the Provider Services.

When Client receives confirmation through the Brownce Services or via email that Provider Services have been completed, Client automatically authorizes the Payment Processor to process the Invoice(s). [Users may be billed a  cancellation fee at the Provider’s posted rate through the Payment Processor if you book (or accept) Provider Services, but cancel it before (or fail to appear upon) the scheduled time for performance. 

Brownce reserves the right (but not the obligation) upon request from Client or Provider, or upon notice of any potential fraud, unauthorized charges or other misuse of the Brownce Services, to (i) place on hold any Provider Payment, out of pocket expenses, and/or tip or gratuity (if applicable) or (ii) refund or provide credits, or arrange for the Payment Provider to do so.

Users of the Brownce Services will be liable for any taxes (including VAT, if applicable in the country where the Provider services are performed) required to be paid on such services provided under the Agreement.

 

5. Compliance with Laws. You will be responsible for the compliance of your employees, agents and subcontractors with this Agreement and their use of the Services and Application in accordance herewith. You are solely responsible for any of your obligations under applicable laws, rules or regulations.  You agree to abide by any additional conditions that may apply to your access to and use of the Services and any third-party products or services that you may access through the Services. Breaches of this Agreement and/or violations of applicable law discovered by Brownce may result in immediate suspension and/or termination of the account, legal action or referral to federal or state governmental authorities.

 

6. Content. For purposes of this Agreement, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, maps, graphics and interactive features generated, provided or otherwise made accessible on or through the Services, including all Client Content (defined below). Content added, created, uploaded, submitted, distributed or posted to the Services by users (collectively, “User Content”) is the sole responsibility of the person or entity who originated such User Content, including any User Content provided by or for you (“Your Content”). You represent, warrant and covenant that (A) all Your Content submitted by you will be legal, true, accurate, complete and current, (B) you have sufficient rights to provide and use Your Content, (C) Your Content and your provision thereof do not violate this Agreement, any applicable law, any contractual obligations or any third-party rights and (D) you are responsible for and assumes all risks in connection with Your Content and the provision thereof, including any personal information contained therein. You agree that Brownce is not liable for any User Content. Brownce reserves the right to remove or hide or change any images without notice.

 

The Brownce Services hosts User Content relating to reviews and ratings of specific Providers (“Feedback”). Feedback is such User’s opinion and not the opinion of Brownce, and has not been verified or approved by Brownce. You agree that Brownce is not responsible or liable for any Feedback or other User Content. Brownce encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Brownce is not obligated to investigate any remarks posted by Users for accuracy or reliability or to consider any statements or materials posted or submitted by Users about any Feedback but may do so at its discretion. You agree that Feedback enables Users to post and other Users to read about Users’ expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such feedback. You may request removal of a review that violates this Agreement by contacting Brownce at support@brownceapp.com. Each Client should undertake their own research to be satisfied that a specific Provider has the right qualifications for specific Provider services.

 

7. License to Your Content. You hereby grant to Brownce a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, transferable, sublicensable, worldwide license to use, reproduce, distribute, print, display, modify, reformat, translate, transmit and otherwise act with respect to any Your Content (and any intellectual or proprietary rights therein) for the purpose of operating the Services and Brownce’s internal business purposes.

 

8. Application Ownership. All right, title and interest (including all intellectual property rights) in, to or connected with the Application, the Services or any related software, documentation or information, in whole or in part, shall remain the exclusive property and confidential information of Brownce or its third-party licensors. Brownce will retain all right, title and interest (including all intellectual property rights) in, to and relating to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or for you or any third party relating to the Application, the Services or any related software, which you hereby irrevocably assign to Brownce.

 

9. License to Services. Subject to the terms and conditions of this Agreement and any applicable documentation or policies posted on the Services, Brownce hereby grants you a nonexclusive, nontransferable, non-sublicensable, revocable, limited license to access and utilize the Application, Services and Brownce Content (solely in connection with your use of the Applications and Services) solely for your internal use. All rights not expressly granted to you hereunder shall remain at all times with Brownce or its third-party licensors. “Brownce Content” means materials developed or provided by or for Brownce under this Agreement, or used on, to or in connection with, or to create or operate, the Application or Services or any part thereof, including but not limited to any content, graphics, computer software (in object code and source code form), data or information (including data and information about potential or existing customers), know-how, methodologies, equipment or processes and all copyrights, trademarks, patents and trade secrets and any other intellectual property or proprietary rights therein.

 

10. Termination. Either party may terminate this Agreement for any reason or no reason whatsoever immediately upon written notice. Brownce may, in whole or in part, immediately terminate this Agreement and suspend your access to the Services, Application or the processing of any pending or future transactions pursuant to this Agreement in the event that (i) you breach your obligations under this Agreement, (ii) Brownce reasonably believes that you have suspended or will suspend your business activities, become insolvent or subject to bankruptcy, insolvency or any other proceeding relating to your insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) your use of the Services violates (or is likely to violate) any applicable law, rule, regulation or contractual obligation of yours.

 

If you wish to terminate your Account, you may do so by following the instructions available on the Application or through the Services. Any fees paid or payable to Brownce hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including without limitation provisions regarding the following: ownership, license to use Content, Brownce Fees, warranty disclaimers, indemnity, releases, limitations of liability and dispute resolution.

 

11. Warranty Disclaimer. THE SERVICES, THE APPLICATION, BROWNCE CONTENT AND ALL CONTENT, GRAPHICS, SOFTWARE, INFORMATION AND MATERIALS INCLUDED IN OR RELATED TO THE FOREGOING, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, BROWNCE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NN-INTERFERENCE, ACCURACY OR COMPLETENESS OF DATA, QUALITY OF SERVICE, TIMELINESS, RELIABILITY, AVAILABILITY AND SUITABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BROWNCE DOES NOT WARRANT THAT THE APPLICATION, SERVICES OR ANY CONTENT WILL BE UNINTERRUPTED, ERROR- OR VIRUS-FREE. BROWNCE EXPRESSLY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY INTERNET SERVICE OR HOSTING PROVIDERS.

 

12. No Liability. BROWNCE (TOGETHER WITH ITS AGENTS, OFFICERS, AFFILIATES, CONTRACTORS AND EMPLOYEES) SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FROM HARM TO BUSINESS, LOST REVENUES, LOST SALES, LOST SAVINGS, LOST PROFITS (ANTICIPATED OR ACTUAL), LOSS OF USE, DOWNTIME, INJURY TO (WHETHER BODILY OR EMOTIONAL DISTRESS) OR DEATH OF PERSONS, DAMAGES TO PROPERTY OR THIRD-PARTY CLAIMS) (A) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OR INABILITY TO USE THE SERVICES, (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (C) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND THIRD PARTY, EVEN IF BROWNCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BROWNCE’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE GREATER Of (I) AMOUNTS EQUAL TO THE TOTAL BROWNCE FEES PAID OR PAYABLE BY YOU FOR THE PARTICULAR SERVICES AT ISSUE OR (II) $500.00.

 

13. Third Party Services. Users of the Services may be provided links and other connections to other websites, services or resources through the Services. When you access any third-party service through the Services, you do so at your own risk. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external services or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such services or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such site, service or resource. As such, we disclaim: (a) all responsibility and liability for third party services accessed through the Services and your resultant exploitation thereof; and (b) any representations or warranties as to (i) the security of any information you might be requested to give any third party and (ii) the functionality of third party services accessed through the Services, whether by you or any other user of the Services. You hereby irrevocably waive any claim against Brownce with respect to such third party sites, content, services, applications or widgets. You acknowledge and agree that in addition to this Agreement, any use of third-party services accessed through the Services is subject to, and you shall comply with, the terms and conditions applicable to such third party services. The inclusion of any link to any third-party website or service on the Services does not imply endorsement by Brownce or any association with its operators. You hereby agree to indemnify and hold Brownce and our officers, directors, affiliates, employee, agents and investors (collectively, the “Brownce Parties”) and any other person, firm, or entity harmless from any damages, claims, actions, liabilities, losses and expenses (including, without limitation, reasonable attorneys’ fees) of every kind or nature, suspected and unsuspected, known and unknown, and disclosed or undisclosed (collectively, “Claims”), arising out of or in connection with (i) your access to or use of any third-party services or resources, whether accessed through the Services or otherwise, (ii) the results of any information obtained through the Services and (iii) any decisions made by you based on such information.

 

15. Indemnification. You hereby agree to indemnify and hold the Brownce Parties and any other person, firm, or entity harmless from any Claims arising out or in connection with: (i) your access to or use of the Services; (ii) Content submitted by you to the Services and any information or materials that you otherwise make available to Brownce; (iii) your breach or violation of any of these Terms of Service or applicable law, rules or regulations; or (v) your violation of any intellectual property or other rights of any third party. 

 

16. Dispute Resolution.

  1. Binding Arbitration. You agree that any dispute, claim, or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Brownce, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive relief or other equitable relief in a court of competent jurisdiction to prevent the actual, alleged or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Brownce are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Unless both you and Brownce otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms of Service.

  2. Arbitration and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution” section.

  3. Arbitration Process. A party that elects 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 at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175). If you and Brownce 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.

  4. Arbitration Location and Procedure. Unless you and Brownce otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Brownce 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 you and Brownce, consistent with the expedited nature of the arbitration.

  5. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of Sections 13, 14 and 16 as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Brownce will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if Brownce prevails in arbitration.

  6. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Brownce will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

  7. Updates to Dispute Resolution Section. Notwithstanding the provisions of the modification-related provisions above, if Brownce changes this “Dispute Resolution” section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by providing Brownce written notice of such rejection by mail or hand delivery to: Brownce.com, Inc. Attn: Dispute Resolutions, P.O. Box 15004, Reading, PA 19612 , or by email from the email address associated with your Account to: support@brownceapp.com, within thirty (30) days of the date such change became effective, as indicated by the “Effective Date of Terms of Service” below. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and Brownce in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

 

17. Rules of Conduct.

  1. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services, including all activity initiated through your Account and any activities of your employees, agents or subcontractors.

  2. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.

  3. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.

  4. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent or otherwise address fraud, security or technical issues, (iv) respond to user support requests or (v) protect the rights, property or safety of us, our users and the public.

18. Acceptable Use Policy. You shall not (and shall not permit any third party to) either (i) take any action or (ii) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any of your Content, that: (A) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty; (B) you know is false, misleading, untruthful or inaccurate; (C) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion; (D) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (E) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party; (F) impersonates any person or entity, including any of our employees or representatives; or (G) includes anyone’s identification documents or sensitive financial information.

 

19. The Application; Mobile Devices.

  1. The Services may allow you to access our services, download our Application, upload content to the Services and receive information 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.

  2. Performance Metrics: Our mobile app collects specific performance metrics to provide beauty professionals with valuable insights into their performance on the Brownce platform. These metrics are gathered and analyzed solely for the purpose of offering you enhanced performance assessment tools, facilitating professional growth, and improving the overall user experience on our platform. By utilizing our mobile app and engaging with the Brownce platform, you explicitly provide your informed consent to the collection, processing, and analysis of these performance metrics, as outlined above.Please note that these metrics are anonymized and aggregated to protect your privacy and confidentiality. Individual users cannot be personally identified through the presentation or analysis of these metrics.

  3. You acknowledge that your use of the Application is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the Application operates.

20. Apple Device and Application Terms. If you are accessing the Services via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store, the following shall apply:

  1. Both you and Brownce acknowledge that these Terms of Service are concluded between you and Brownce only, and not with Apple, and that Apple is not responsible for, does not endorse, and is not involved in the application;

  2. The application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the Services;

  3. You will only use the application in connection with an Apple device that you own or control;

  4. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the application;

  5. In the event of any failure of the application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the application;

  6. You acknowledge and agree that Brownce, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the application;

  7. You acknowledge and agree that, in the event of any third party claim that the application or your possession and use of the application infringes that third party’s intellectual property rights, Brownce, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

  8. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

  9. Both you and Brownce acknowledge and agree that, in your use of the application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and

  10. Both you and Brownce acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.

21. Miscellaneous.

  1. Publicity. You hereby grant to Brownce a temporary, limited, nonexclusive, non-transferable, worldwide license, without the right to sublicense, to use, during the term of this Agreement, your trademarks, service marks and logos (collectively referred to as “Marks”) on Brownce’s websites and in mutually agreed-upon collateral sales materials solely in furtherance of and subject to this Agreement or as otherwise mutually agreed upon in writing or through the Services. Brownce will only use and display your Marks and copyrighted information in accordance with the applicable guidelines provided by you. Brownce will ensure that proper trademark and copyright notices are displayed at all times in association with the Marks and copyrighted materials, including any such use or display on Brownce’s website.

  2. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to support@brownceapp.com.

  3. Governing Law. This Agreement shall be governed solely in accordance with the laws of the state of New York, including its conflict of law rules, and the United States of America.

  4. Modification. Brownce reserves the right, in its sole discretion, to modify or replace any of these Terms of Service, or change, suspend or discontinue the Services (including without limitation, the availability of any feature, database or content) at any time by posting a notice on the Application or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. Brownce may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While Brownce will use reasonable efforts to provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.

  5. General. This Agreement is the entire agreement between you and Brownce with respect to the Services, including use of the Application or any Brownce Content, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Brownce with respect to the Services. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. This Agreement is not assignable, transferable or sublicensable by you except with Brownce’s prior written consent. Brownce may assign, transfer or delegate any of its rights or obligations hereunder, in whole or in part, without consent. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Brownce or any Client as a result of this Agreement or use of the Services. Brownce’s failure to enforce any part of these Terms of Service shall not constitute a waiver of its right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that Brownce will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, Brownce must provide you with written notice of such waiver through one of Brownce’s authorized representatives. The Parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, no agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither you nor Brownce has any authority of any kind to bind the other in any respect.