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Terms and Conditions

Effective Date: May 30th, 2023


These Terms of Service (the “Agreement”) is a legally binding agreement between you (the “User,” “you,” or “your”) and Boka Inc. (“BOOKA,” “we,” “us,” “our”). You acknowledge and agree that your use of the BOOKA platform through BOOKA’s website at www.justbooka.com (the “Website”) and BOOKA’s mobile application (the “App”, and with the Website, the “BOOKA Platform”), including any content, functionality, software applications, resources and services offered on or through the BOOKA Platform, whether as a guest or registered user, will be governed by this Agreement, our Privacy Policy, and any related terms.

YOUR USE OF THE BOOKA PLATFORM SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT AND TO ALL OF THE TERMS AND CONDITIONS STATED UNDER THIS AGREEMENT AND OUR PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT ACCESS OR USE THE BOOKA PLATFORM. ‍

PLEASE READ THE TERMS CONTAINED IN THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES RESOLVING DISPUTES BETWEEN YOU AND BOOKA BY INDIVIDUAL, BINDING ARBITRATION. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE AS A PLAINTIFF IN A CLASS ACTION LAWSUIT AGAINST BOOKA.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY USING OR ACCESSING THE BOOKA PLATFORM, YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT (A) YOU HAVE READ AND UNDERSTOOD THE AGREEMENT; (B) YOU ARE AT LEAST 18 YEARS OLD, (C) YOU CAN FORM A BINDING CONTRACT; AND (D) YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AS WELL AS OUR PRIVACY POLICY INCORPORATED BY REFERENCE HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE BOOKA PLATFORM. IF YOU ARE NOT AT LEAST 18 YEARS OLD, YOU MAY NOT USE THE BOOKA PLATFORM AT ANY TIME OR IN ANY MANNER OR SUBMIT ANY INFORMATION THROUGH THE BOOKA PLATFORM.

Capitalized terms not defined herein shall have the same meaning ascribed to them under our Privacy Policy.

INTRODUCTION TO THE BOOKA PLATFORM

BOOKA provides beauty, health and wellness booking services (the “BOOKA Services”) through the BOOKA Platform accessible through our Website, App and any other points of access we may make available to you.  The BOOKA Platform facilitates the booking and sale of services between consumers (the “Consumers”) and providers (the “Providers”). The BOOKA Services include the marketing, promotion, and sale of provider services (the “Provider Services”) on the BOOKA Platform and any necessary technical customer support for booking the Provider Services that are sold or the appointments that are booked through the BOOKA Platform.  

BOOKA IS A BOOKING PLATFORM AND IS NOT A PARTY TO ANY SERVICE AGREEMENT OR OTHER TRANSACTION BETWEEN CONSUMERS AND PROVIDERS.

BOOKA is Only a Booking Platform.  BOOKA acts as an online booking destination for Consumers and Providers (each a “User” and together, “Users”) to view and post available Provider Services and to facilitate the booking of such Provider Services through the BOOKA Platform. BOOKA is not a party to any actual agreement or transaction between Consumers and Providers even though we may from time to time provide tools that relate to a booking, such as tools to enable a Consumer to enter into a transaction by booking a specific service directly from a Provider and facilitating payments to confirm the booking. As a result, BOOKA has no control over the accuracy or correctness of the content or information provided or used by such Consumers and Providers. Any part of an actual or potential transaction between a Consumer and a Provider, including the condition, quality, safety or legality of the services advertised, the truth or accuracy of the listings (including the content thereof or any review related thereto), the ability of Providers to provide a service to a Consumer, or the ability of Consumers to pay for or receive a service from a Provider are solely the responsibility of each User. Provider acknowledges and agrees that Provider is solely responsible for the safety of the Consumer(s) who book Provider's Service(s).

User Content. Users are allowed to generate content on the BOOKA Platform, such as reviews, postings for services, and photographs. You acknowledge and agree to take all reasonable precautions in ensuring the accuracy and reliability of any User generated content. We are also not responsible for the accuracy, quality or condition of any Provider Services listed on the BOOKA Platform or their compliance with laws, rules or regulations that may be applicable to Provider Services in any jurisdiction.

Compliance. As between BOOKA and Providers, Provider acknowledges and agrees that Provider is solely responsible for ensuring compliance with laws, rules or regulations that may be applicable to the provision of Provider’s Service(s) in the jurisdiction in which Provider operates or is otherwise located, including but not limited to any applicable licensing and safety regulations. Consumers should satisfy themselves regarding the compliance of any applicable legal or safety requirements for any Provider Service, and Consumers and Providers have exclusive responsibility for such compliance. Without limiting the foregoing, Providers and Consumers are solely responsible for their own compliance with any legal and/or safety requirements in place in your applicable jurisdiction. Providers are responsible for determining if the provision of a Provider Service is permissible and, if so, for providing such service in such conditions for Consumers and with appropriate supplies for Consumers as required for the safety of Consumers and Providers.

Separate Agreements. You acknowledge and agree that you may be required to enter into a separate agreement and/or waiver, directly between the Consumer and Provider, after making a booking for certain Provider Services, and such agreement and/or waiver may place additional restrictions on your booking for certain Provider Services. Any separate agreements and/or waivers relating to a Provider Service or related products or services are under the sole control of the Provider and Consumer.

TERRITORIAL RESTRICTION The BOOKA Platform is only available for use and download in the United States and is not available for use and download for anyone outside of the United States. If you have any questions regarding this Section, please email us at support@justbooka.com.

PRIVACY POLICY Our Privacy Policy describes how we handle the personal and business information you provide to us when you register for, access, or use, the BOOKA Platform. You understand that through your use of our the BOOKA Platform, you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States for storage, processing and use by BOOKA and our affiliates.

ELIGIBILITY & ACCESS RESTRICTIONS

REGISTRATION

To use the BOOKA Platform, you need to set up an account (“Account”). When you set up an Account, you will need to provide information that may include your name, physical address, online contact information such as your email address or username, phone number, and other personal information (collectively, “Personal Information”), as well as create a password (“Password”). You agree that all information you provide is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it current. You may not transfer or share your Password or Account (collectively, the “Account Information”) with anyone else except your agent(s), representative(s) or other affiliate(s).

You are responsible for maintaining the confidentiality of your Account Information and for all activities that occur under your Password or Account. You agree to immediately notify us upon becoming aware of any unauthorized use of your Account or Account Information. BOOKA reserves the right to take any and all action, as it deems necessary, regarding the security of the BOOKA Platform and your Account Information. Under no circumstances shall BOOKA be held liable to you for any claims or damages resulting from or arising out of your use of the BOOKA Platform, your use of the Account Information, or your release of the Account Information to a third party.

PAYMENT

The BOOKA Platform uses Stripe, a third-party payment processor, to facilitate payments for the Provider Services. You will be charged immediately for any Provider Services you book through the BOOKA Platform. In the event that you cancel a Provider Service that you book through the BOOKA Platform, you may be assessed a cancellation or termination fee and you may not be eligible to receive any refund for the canceled Provider Service.

SERVICE LICENSE

Subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, revocable, non-transferable, non-licensable, non-sublicensable license to access and use the BOOKA Platform to: (a) download, install, and use our App for your use in accordance with this Agreement on any mobile device owned or otherwise controlled by you strictly in accordance with this Agreement, and (b) access, stream, download, and use on your mobile device the BOOKA Platform and content made available in or otherwise accessible through the BOOKA Platform, strictly in accordance with this Agreement.

You will not use, copy, adapt, modify, prepare derivative works based upon the BOOKA Platform, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the BOOKA Platform, except as expressly permitted in this Agreement. When using and accessing the BOOKA Platform, you need to make sure that your internet connection is adequate. You are solely responsible for your internet connection including and not limited to the applicable charges, rates, tariffs, and other fees that might apply.

YOU AGREE THAT BOOKA IS NOT LIABLE FOR ANY DAMAGES OR INJURY RESULTING FROM YOUR ACCESS OR USE OF THE BOOKA PLATFORM, WHETHER THROUGH THE WEBSITE, APP, OR ANY OTHER ACCESS POINT. WE PROVIDE NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. THERE IS NO WARRANTY WHICH WILL EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY DAMAGE ALLEGED FOR A LOSS OR INJURY IS LIMITED TO THE FEE, IF ANY, PAID TO BOOKA FOR THE ABILITY TO ACCESS OR USE THE BOOKA PLATFORM.

ACCESS AND SERVICE RESTRICTIONS

You agree that the BOOKA Platform, including but not limited to the Website, App, graphics, trademarks, and editorial content, contains proprietary content, information, and material, which are owned by BOOKA and/or our licensors, including our customers, brands and agencies, and are protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of the BOOKA Platform or in any manner that is inconsistent with the terms contained in this Agreement.

You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the BOOKA Platform, in any manner, and you will not exploit the BOOKA Platform in any unauthorized way whatsoever, including but not limited to, using the BOOKA Platform to transmit any computer viruses, worms, Trojan horses or other malware, or by trespassing or burdening network capacity. You further agree not to use the BOOKA Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using the BOOKA Platform.

RESERVATION OF RIGHTS

You acknowledge and agree that the BOOKA Platform is provided for your use. Except to the extent necessary to access and use the BOOKA Platform, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to the BOOKA Platform, whether expressly, by implication, estoppel, or otherwise. BOOKA and its licensors and service providers reserve and will retain their entire right, title, and interest in and to the BOOKA Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

ACCESS RIGHTS

You can access and use our Website at www.justbooka.com. If you want to access and use our App, please go to your Google Play Store or Apple App Store to download the App. When downloading and using the BOOKA Platform, you are required to provide us with registration information including Personal Information. You agree that we have the right to disable your access and use rights, at any time if, in our opinion, you have violated any provision of this Agreement and/or our Privacy Policy.  You agree to cooperate with us if the security of the BOOKA Platform is compromised by you or another person using your account.  We will not be liable for any loss or damage arising from your failure to comply with this Section.

We collect personal and business information (as set forth in our Privacy Policy), which we need, from you when you register to use the BOOKA Platform.

REQUIRED CONDUCT AND PROHIBITED CONDUCT

As a condition to access the BOOKA Platform, you agree to this Agreement and to strictly observe the following:

Required Conduct

  • Comply with all applicable laws, including, without limitation, tax laws, export control laws and regulatory requirements
  • Provide accurate and current information to BOOKA and update from time to time as may be necessary
  • Review our Privacy Policy
  • Review and comply with notices sent by BOOKA, if any, concerning the BOOKA Platform.

Prohibited Conduct

  • Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit the BOOKA Platform (excluding any user content)
  • Reverse engineer, decompile, disassemble, decipher, capture screen shots, or otherwise attempt to derive the source code for any underlying intellectual property used to provide the BOOKA Platform, or any part thereof
  • Utilize information, content or any data you view on and/or obtain from the BOOKA Platform to provide any service that is competitive with us
  • Imply or state, directly or indirectly, that you are affiliated with or endorsed by BOOKA unless you have entered into a written agreement with us
  • Adapt, modify or create derivative works based on the BOOKA Platform or technology underlying the BOOKA Platform, or other Users’ content, in whole or in part
  • Rent, lease, loan, trade, sell/re-sell access to the BOOKA Platform or any information therein, or the equivalent, in whole or part
  • Access, reload, or “refresh” or make any other request to transactional servers that are beyond generally accepted usage of web-based applications
  • Use manual or automated software, devices, scripts robots, other means or processes to “scrape”, “crawl” or “spider” any web pages contained in the Website
  • Use automated methods to add contacts or send messages
  • Engage in “framing”, “mirroring”, or otherwise simulating the appearance or function of our Website
  • Attempt to or actually access the BOOKA Platform by any means other than through the interface provided by BOOKA
  • Attempt to or actually override any security component included in or underlying the BOOKA Platform
  • Engage in any action that interferes with the proper working of or places an unreasonable load on our infrastructure, including but not limited to unsolicited communications, attempts to gain unauthorized access, or transmission or activation of computer viruses
  • Remove any copyright, trademark, or other proprietary rights notices contained in or on the BOOKA Platform, including those of both BOOKA or any of our licensors
  • Transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
  • Use any information obtained from the BOOKA Platform to harass, abuse, or harm another User; or
  • Engage in any action or promote any content that is harmful, offensive, illegal, unlawful, discriminatory, dangerous, or abusive.

BOOKA COMMUNICATIONS

You understand and agree that you may receive information and push notifications from BOOKA via email, our App, text message on your mobile device, or calls to your mobile number. You hereby consent to receive communications via email, our App, text message on your mobile device, or calls to your mobile number. You acknowledge that you may incur additional charges or fees from your wireless provider for these communications, including text message charges and data usage fees, and you acknowledge and agree that you are solely responsible for any such charges and fees and not BOOKA.

• Email Contact.  We may send promotional messages about us and our products and services related to the BOOKA Platform to your email.  When you send us a query email at support@justbooka.com, you are providing us with consent to send emails to you for replying to your queries at your provided email address. By providing your email address, you agree with this Agreement and our Privacy Policy.
• Push Notification.  You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of the BOOKA Platform.

INDEMNIFICATION

You agree to indemnify, defend, and hold BOOKA and our officers, employees, managers, directors, and agents (the “Indemnitees”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against BOOKA and our Indemnitees arising from any of the following: (i) a breach of this Agreement or misrepresentation made by you with respect to this Agreement; (ii) the negligence, fraud, or willful misconduct of you or your employees, agents, or contractors; (iii) incorrect information provided by you in your account or elsewhere; or (iv) a failure by you or your employees, agents or contractors to comply with applicable laws and regulations.

DISCLAIMERS

Your access to and use of the BOOKA Platform or any content are at your own risk. You understand and agree that the BOOKA Platform is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. We make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the BOOKA Platform or any content therein; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the BOOKA Platform or any content on the BOOKA Platform; (iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by the BOOKA Platform; and (iv) whether the BOOKA Platform will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from us or through the BOOKA Platform, will create any warranty or representation not expressly made herein.

You agree and acknowledge that BOOKA is not liable or responsible for any issues arising from, in connection with or related to the Provider Services, including any products, goods, or services provided to you (including free consults) or sold to you by Providers through our BOOKA Platform or directly from Providers.

BOOKA DOES NOT REVIEW, VERIFY, REVISE, ENDORSE, OR OTHERWISE APPROVE ANY CONTENT CREATED OR POSTED BY OUR USERS, AND COMMUNICATED TO OTHER USERS OR THIRD PARTIES VIA THE BOOKA PLATFORM, BUT BOOKA WILL REMOVE CONTENT THAT VIOLATES ANY LAWS OR THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL BOOKA BE LIABLE IN ANY WAY FOR ANY CONTENT CREATED OR POSTED BY OUR USERS FOR, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF SUCH CONTENT. THE CONTENT IS SOLELY CREATED BY OUR USERS, AND BOOKA SPECIFICALLY DISCLAIMS ANY AND ALL ROLE WHATSOEVER WITH RESPECT TO THE CREATION OR POSTING OF SUCH CONTENT.  

LIMITATION OF LIABILITY

You acknowledge and agree that, in no event will BOOKA be liable to you or any third party for any indirect, punitive, exemplary, incidental, special, consequential, or reliance damages, including any loss profits, arising out of this Agreement, whether in contract, tort (including negligence), or arising out of the use of, or the inability to use, the BOOKA Platform, including, without limitation, any information made available through the BOOKA Platform pursuant to this Agreement. In the event the foregoing limitation of liability is determined by a court of competent jurisdiction to be unenforceable, then the maximum liability for all claims of every kind will not exceed one times (1x) the aggregate of payments received or accrued under this Agreement twelve (12) months prior to the date of the event giving rise to any liability, or, if you have not paid BOOKA the use of any services, the amount of $100.00 USD. The foregoing limitation of liability will cover, without limitation, any technical malfunction, computer error or loss of data, and any other injury arising from the use of the BOOKA Platform.  Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. To the extent that BOOKA may not disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of BOOKA’s liability will be the minimum permitted under applicable law.

TERMINATION

Termination

We further reserve the right to suspend or terminate your account or cease providing you with access to all or part of the BOOKA Platform at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated this Agreement or our Privacy Policy, (ii) you create risk or possible legal exposure for BOOKA; or (iii) our provision of the BOOKA Platform to you is no longer commercially viable. We will make reasonable efforts to notify you of such termination by the email address associated with your account or the next time you attempt to access your account, depending on the circumstances. In all such cases, this Agreement shall terminate, including, without limitation, your license to use the BOOKA Platform.

Survival

All sections, which by their nature and context are intended to survive the termination of this Agreement, will survive.

COPYRIGHT INFRINGEMENT/DMCA NOTICE If you believe that any content on the BOOKA Platform violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA Takedown Notice”)) must be provided to our designated Copyright Agent.

  • Your physical or electronic signature
  • Identification of the copyrighted work(s) that you claim to have been infringed
  • Identification of the material on the BOOKA Platform that you claim is infringing and that you request us to remove
  • Sufficient information to permit us to locate such material
  • Your address, telephone number, and email address
  •  A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

BOOKA’s Copyright Agent to receive DMCA Takedown Notices is legal@justbooka.com. You acknowledge that for us to be authorized to take down any content, your DMCA Takedown Notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by BOOKA in connection with the written notification and allegation of copyright infringement. 

ASSIGNMENT

This Agreement is only for your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.

ANTI-BRIBERY AND EXPORT COMPLIANCE

You agree not to promote, approach, use, distribute, transfer, provide, sub-license, share with, or otherwise offer the BOOKA Platform in violation of any laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) the BOOKA Platform to any destination, person, entity or end-use prohibited or restricted under the US law without prior US government authorization to the extent required by the applicable export control regulations, including without limitation, to any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the Export Administration Regulations or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by the applicable regulations.

MODIFICATIONS

We reserve the right, at our sole discretion, to change or modify this Agreement at any time. In the event, we modify the terms of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. We will inform you about the modifications via email, on the BOOKA Platform by posting a modified version of this page, or by a comparable means within a reasonable time period.  Your continued use of the BOOKA Platform shall constitute your consent to such changes.

RELATIONSHIP OF PARTIES

The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, or agent/servant. The User has no power or authority to bind BOOKA to any obligation, agreement, debt or liability. The User shall not hold itself out as an agent or representative of BOOKA.

GOVERNING LAW

This Agreement shall be governed by the law of the State of Delaware, without respect to its conflicts of laws principles.  Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California for any actions not subject to Dispute Resolution and Arbitration provisions as set forth below.

DISPUTE RESOLUTION AND ARBITRATION

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH BOOKA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Binding Arbitration

Any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”), except for Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and BOOKA agree (a) to waive your and BOOKA’s respective rights to have any and all Disputes arising from or related to this Agreement, use of the BOOKA Platform, resolved in a court, and (b) to waive your and BOOKA’s respective rights to a jury trial. Instead, you and BOOKA agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more arbitrator charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).

No Class Arbitrations, Class Actions or Representative Actions

You and BOOKA agree that any Dispute arising out of or related to this Agreement or use or access of the BOOKA Platform is personal to you and BOOKA and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and BOOKA agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and BOOKA agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

Federal Arbitration Act

You and BOOKA agree that this Agreement affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

Notice; Informal Dispute Resolution

You and BOOKA agree that each party shall first notify the other party in writing of any Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to BOOKA shall be sent by certified mail or courier to Boka, Inc., Attn: legal@justbooka.com. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your BOOKA account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and BOOKA cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or BOOKA may, as appropriate and in accordance with this Section, commence an arbitration proceeding.

Arbitration Process

EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND BOOKA AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR BOOKA WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND BOOKA WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and BOOKA agree that  (a) any arbitration will occur in Los Angeles County, California, (b) arbitration will be conducted confidentially by a single arbitrator 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, and (c) that the state or federal courts of the State of Delaware, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.

Authority of Arbitrator

As limited by the FAA, this Agreement and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA Rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.

The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and 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. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.

Rules of AAA

The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879. By agreeing to be bound by this Agreement, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.

Severability

If any term, clause or provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law. 

Opt-Out Right

YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO: BOKA, INC., RE: OPT-OUT, LEGAL@BOOKA.CO. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH THIS SECTION.  

MISCELLANEOUS

This Agreement along with our Privacy Policy constitutes the entire agreement between you and BOOKA and supersedes any prior agreements between you and BOOKA with respect to the subject matter herein. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, we both nevertheless agree that the court should endeavor to give effect to our intentions as reflected in this provision, and the other provisions of this Agreement to remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the BOOKA Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. All the sections intended to survive the termination of this Agreement shall survive. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Except as explicitly stated otherwise, any notices to BOOKA shall be given by certified mail, postage prepaid and return receipt requested to Boka, Inc. at support@justbooka.com. Any notices to you shall be provided to you through the BOOKA Platform or given to you via the email address or physical address you provide to BOOKA during the registration process.