NOTICE TO USER: THIS IS A LEGAL AGREEMENT BETWEEN CAAZAM INC. (“Boutiq” or “Us” or “We”) AND YOU (“You” OR THE “Customer”) REGARDING THE SERVICES PROVIDED TO YOU THROUGH THE WEBSITE GETBOUTIQ.COM OR BOUTIQ.APP ("Site") AND RELATED INTERFACES (THE “Boutiq Service”). PLEASE READ IT CAREFULLY.
BY USING AND/OR PAYING FOR THE SERVICE(S) SET OUT HEREIN YOU ACCEPT AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH INCLUDES OUR PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE. THE SITE AND SERVICES ARE OFFERED AND AVAILABLE TO USERS WHO ARE EIGHTEEN (18) YEARS OF AGE OR OLDER. BY USING THE SITE OR SERVICES YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BOUTIQ. IF YOU USE THE SERVICES ON BEHALF OF YOUR EMPLOYER, YOU WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF YOUR EMPLOYER AND THE SAME RIGHTS, LIMITATIONS AND RESTRICTIONS APPLY TO YOUR EMPLOYER. WE ARE RELYING UPON YOUR REPRESENTATION THAT YOU MAY BIND YOUR EMPLOYER TO THE TERMS OF THIS AGREEMENT. IF YOU AND/OR YOUR EMPLOYER DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR IF YOU ARE NOT AUTHORIZED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF YOUR EMPLOYER, YOU MUST NOT USE THE SERVICE(S) OR MAKE ANY PAYMENT.
We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when posted and apply to all access to and use of the Site and Services thereafter. Your continued use of the Site or Services following the posting of changes to these Terms of Service means that you accept and agree to such changes. It is your responsibility to check these Terms of Service periodically for changes, as these changes are binding on you.
NOTICE REGARDING DISPUTE RESOLUTION: These Terms of Service contain provisions that govern the resolution of claims between you and Boutiq. They also include an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Unless you opt out, you will only be able to pursue claims against Boutiq on an individual basis, not as part of any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
In addition to the terms defined throughout this Agreement, the following definitions shall apply:
"Effective Date" means the date which You commence using the Services.
"Services" means any and all services provided to you through the website getboutiq.com or boutiq.app (including the Boutiq Software, which includes live video call, chat, visitor tracking, shopping cart, checkout and any other additional services that Boutiq may add to such Boutiq Software in the future). There may be multiple service levels available within the Services including free Services and subscription based paid Services ("Purchased Services") that you may request from Boutiq and that we may provide to You for free or for a fee, as the case may be.
"Subscription Fee" means the monthly fee payable by You in advance for the provision of the Purchased Services, and as may be modified by Boutiq on notice to You from time to time.
"Subscription Period" means the period from the Effective Date until this Agreement is terminated in accordance with this Agreement.
Subject to Your compliance with all the terms and conditions of this Agreement (including timely payment of all Subscription Fees), Boutiq grants You a personal, non-exclusive, non-transferable, terminable license to access our Site and use the Services (the "License") from the Effective Date for the Subscription Period based upon the level of Services you have requested that we provide You.
Some of the Services provided are free while others shall only be provided in exchange for a monthly Subscription Fee. The monthly Subscription Fee payable by You to Us will vary depending upon the Services you request us to provide You. You may request and Boutiq may agree to upgrade or downgrade the Services provided to You and the Subscription Fee payable will be amended accordingly.
Boutiq shall use all reasonable efforts to ensure that access to the Services is available to You. You agree and understand that there will be times (planned and emergency) when the Services will not be available. Boutiq shall make commercially reasonable efforts to notify You of planned downtime and unavailability of the Service. Notwithstanding such undertaking, Boutiq shall not be liable for any Service unavailability which arises as a result of emergency downtime and Service unavailability.
You hereby agree not to use the Services for any use or purpose that is: (i) obscene, libelous, blasphemous, pornographic, defamatory, inciting hatred, terrorism or any similar offense; (ii) unlawful or misleading; (iii) for any use that breaches the intellectual property rights of others including but not limited to third party copyrights, storing or sharing copyrighted music or other copyrighted material that has not been legally obtained; (iv) undertaken on behalf of anyone other than You; (v) in violation of any applicable local, state, national and foreign laws, treatises and regulations;
We may establish revised practices and policies concerning the use of the Services, including without limitation, the maximum hours of video calls through the Services, the maximum number of hosts, the maximum number of chats sent through the Services, the maximum number of days that a transcript will be stored and the number of simultaneous connections a given user can have.
We will fully cooperate with law enforcement authorities in investigating suspected lawbreakers, including complying with court orders or lawful requests or demands to preserve or produce information pursuant to local, state or federal laws including requests made by governmental authorities pursuant to the Electronic Communication Transactional Records Act, 18 U. S. C. § 2701, et seq. Any information delivered by You or to You using the Services is subject to preservation and/or production by us upon such lawful requests.
Unauthorized use of the Services, and/or the resale of the Services without Boutiq's prior written consent, is expressly prohibited.
If we become aware of possible violations of these Terms of Service, we may initiate an investigation that may include gathering information from You or anyone else involved and the examination of other material. We may suspend the provision of our Services temporarily, or we may permanently remove the material involved from our servers, provide warnings to you, or suspend your access to our Site. We will determine what action will be taken in response to a violation at our sole discretion.
We value your privacy and understand your privacy concerns. Please review our Privacy Policy, which also governs your access to and use of the Site and Services, so that you may understand our privacy practices. All information we collect is subject to our Privacy Policy, and by using the Site or Services you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. You further understand that any information collected by Boutiq may be transferred to the United States and/or other countries for storage, processing and use by Boutiq and its affiliates.
If you are a licensee of the Boutiq Software (a "Boutiq Customer"), you agree that prior to implementing the Boutiq Software on your website, you shall ensure that your website privacy policy (a) fully discloses to users of your website (your customers) how you treat and use information collected through Boutiq Software implemented on your website; (b) states that the video call option on your website is provided through a third party vendor, Boutiq, who collects, uses, stores, shares, discloses and protects Boutiq Customer Visitors' information obtained by Boutiq in connection with providing the video call option on your website in accordance with the Boutiq Privacy Policy; and (c) includes a link to the Boutiq Privacy Policy.
To access the Site or Services, or some of the resources they offer, you may be asked to provide certain registration details or other information. It is a condition of your use of the Site and Services that you (i) provide correct, current and complete information about yourself as prompted by the registration form for the Site or Services (such information being the "Registration Data") and (ii) maintain and promptly update the Registration Data to keep it correct, current and complete. You agree that all information you provide to register or otherwise, including without limitation through any interactive features of this Site or the Services, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. You further agree that Boutiq may provide any and all notices, statements, and other communications to you through in-app notifications or via email to the email address provided in the Registration Data.
If you create, or are provided with, a user name, password or any other information as part of our security procedures, you agree to treat such information as confidential, and that you will not disclose such information to any other person or entity. You further agree that your account is personal to you and that you will not provide any other person access to this Site or the Services, or any portions of the same, using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
As between you and Boutiq, Boutiq has sole and exclusive ownership of all right, title, and interest in and to the Site and Services, including all copyright and any other intellectual property rights therein. This Agreement conveys a limited right and license to use the Site and any Services, including any data obtained from your use of the Services and any software or hardware utilized in the provision of the Site and Services, as made available to You. It may not be construed to convey title to or ownership of these to You. All rights not expressly granted to You are reserved by Boutiq. The Site and Services, including any data obtained from your use of the Services and any software or hardware utilized in the provision of the Site and Services, are protected by copyright, trademark, and other laws of the United States and foreign countries and organizations of countries (including but not limited to the European and the Commonwealth of Independent States). Except as expressly provided in this Agreement, You may not reproduce, modify, reverse engineer or prepare derivative works, distribute, sell, transfer, publicly display, transmit or otherwise use the Site or Services, including any data obtained from your use of the Services and any software or hardware utilized in the provision of the Site and Services.
Boutiq, getboutiq.com, boutiq.app, and any logos, trademarks, service marks, product names and trade names associated with Boutiq or getboutiq.com or boutiq.app are owned by Boutiq. You may not use any of our trademarks, service marks, product names or trade names without our express written consent.
When you register with Boutiq, getboutiq.com, and boutiq.app and at any time thereafter, you can select what type of Services you require. In consideration for the provision of the Purchased Services, You shall pay Boutiq the applicable Subscription Fee by automatic credit against the credit card You register with at the time You sign up for the Services. You represent and warrant that the credit card information that you provide to Boutiq or its designated payment processing vendor with shall be valid and updated credit card information. If Boutiq utilizes a third party payment processing vendor, then additional terms and conditions will apply to Your transactions with such vendor. You agree, understand and confirm that the payment information provided by You will be correct and accurate and you are using a form of payment that You are legally authorized to use for this purpose. You agree that You are liable for any payment or credit card fraud, abuse or unauthorized use by You or others.
Boutiq shall collect the Subscription Fee from your credit card in advance. The Subscription Fee is exclusive of VAT, use or other sales or similar taxes which, if applicable to You, shall be payable by You at the then prevailing rate. In the event that the Subscription Fee, as appropriate, is not collected in accordance with the provisions herein, Boutiq may deny You access to the Services without notice.
In consideration of the provision of the Boutiq Services, Customer shall pay Boutiq other fees pursuant to the fee schedule and Boutiq subscription plan chosen by Customer on https://getboutiq.com or https://boutiq.app and make such payment in accordance with the instructions and schedule provided for by Boutiq. These other fees include (but not limited to) commissions based on sales made using the Boutiq Software and Services.
Boutiq reserves the right to increase its fees following the Initial Term or Renewal term (as defined below) for any following Renewal Term on 30 days’ prior notice to Customer. If Customer objects to the fee increase, Customer may terminate the Boutiq Service by written notice following the Initial Term or applicable Renewal Term. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Boutiq Service, or Customer’s access to the Boutiq Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Boutiq’s income), which may be invoiced by Boutiq from time-to-time.
Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Boutiq for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
This Agreement shall commence on the Effective Date and shall remain in effect for the Subscription Period unless terminated earlier by either party pursuant to this Agreement. Either Boutiq or You may terminate this Agreement at any time, for the Site and/or any or all Services, for any reason or no reason. Upon termination of this Agreement; (a) the rights and licenses granted to You herein shall terminate as to the terminated rights; (b) You shall cease all use of the Site and Services that have been terminated; and (c) Boutiq may at its own discretion remove and/or purge data, account and any other information obtained by Boutiq in connection with providing you the Site and Services.
If You cancel the Services or otherwise terminate the Agreement, we may retain your Subscription Fees paid to Us by You pursuant to this Agreement. You shall not be entitled to a refund of any Subscription Fees paid to Us except as expressly set forth in our Refund Policy and this paragraph. If We terminate the Agreement, We will refund You, through a credit to your credit card, a prorated amount of any paid but unused Fees previously paid by You to Boutiq for Services pursuant to this Agreement. The prorated amount refunded to you, upon termination by Us, will be calculated by dividing your monthly Subscription Fee at the time the Agreement and Services are terminated by the duration of the subscription and multiplying that amount by the number of days remaining in the billing cycle in which the Services were terminated by US.
You agree to indemnify, defend and hold harmless Boutiq and its manager, officers, employees and agents from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms of Service by you or any other actions connected with your use of or your authorizing others to use the Site or Services. Your indemnification obligations include without limitation claims arising out of your failure to implement a privacy policy in accordance with these Terms of Service, as well as any claims arising out of acts or omissions by your employees or agents, and any other person or entity who gains access to Boutiq's products, services or content through you either with your permission or as a result of your failure to use reasonable security measures.
Boutiq does not represent or warrant that: (i) the use of the Site or Services will be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (ii) the Site or Services will meet your requirements or expectations, (iii) errors or defects will be corrected, (iv) the Site or Services or the server(s) that make the Services available are free of viruses or other harmful components. The Site and Services are provided to You strictly on an "AS IS" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, title or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law.
Your sole remedy with respect to any claims arising out of this Agreement shall be a claim for money damages limited to the lesser of: (i) the aggregate to the monies paid by You to Boutiq under this Agreement during the twelve (12) month period preceding the event giving rise to such liability; or (ii) One Hundred US Dollars ($100).
In no event shall Boutiq be liable for: (i) any special, indirect, incidental or consequential damages, including loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products or services by You even if advised of the possibility of such damages; (ii) any delay or failure to provide the Services that is due to third parties, including, without limitation, internet service providers, data centers, server hosting companies and telecommunications companies; (iii) credit card fraud committed against You by any third party provider of credit card services.
This Agreement is and will be governed by and construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
Except as set forth below, ANY DISPUTE OR CLAIM ARISING UNDER THESE TERMS OF SERVICE, INCLUDING THE PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE, OR RELATING IN ANY WAY TO YOUR USE OF THE SITE OR SERVICES WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT; provided, however, that the following are exceptions to our agreement to arbitrate our disputes:
a) Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
b) Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.
You may begin an arbitration proceeding by following the American Arbitration Association’s (AAA’s) filing requirements and mailing a request for arbitration and description of your claim to our registered agent, Osborn Maledon. The AAA’s Rules of Commercial Arbitration will apply (available at www.adr.org or by calling 1-800-778-7879). The arbitrator will have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
You may opt out of this agreement to arbitrate by providing written notice of your intention to do so to Boutiq within 60 days of the earlier of your first use of the Site or Services or your registration with the Site or Services.
You agree that because of the unique nature of the Services and Boutiq's proprietary rights therein, a demonstrated breach of this Agreement by You would irreparably harm Boutiq and monetary damages would be inadequate compensation. Therefore, You agree that Boutiq shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Agreement. The prevailing party to any such request for preliminary or permanent injunctive relief shall be entitled to an award of its reasonable attorneys’ fees.
If any provision of this Agreement is declared void, illegal, or unenforceable, the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
Any failure by any party to this Agreement to enforce at any time any term or condition under this Agreement will not be considered a waiver of that party's right thereafter to enforce each and every term and condition of this Agreement.
Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof. No purchase order and/or standard terms of purchase provided by You shall supersede this Agreement.
Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against Boutiq and such third parties shall not be entitled to enforce any term of this Agreement against Boutiq.
We may assign our rights and delegate our duties under these Terms of Service either in whole or in part at any time without notice. You may not assign, sublicense or otherwise transfer your rights or obligations, in whole or in part, under these Terms of Service to anyone else without our prior written consent.
This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and us.
Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Boutiq with any feedback or suggestions regarding the Boutiq Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Boutiq may use, disclose and exploit the Feedback in any manner it chooses. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
Boutiq shall have the right to use Customer’s name and logo on client lists published on Boutiq’s website and in marketing materials provided that such use is previewed and pre-approved by Customer. Boutiq may announce the relationship hereunder in a press release provided that Boutiq obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).
If You have any questions regarding this Agreement or if You wish to discuss the terms and conditions contained herein please contact us by emailing us at support@getboutiq.com.
More on GDPR can be found here.