TERMS OF SERVICE - Mango For Salon

Merchant Terms of Service

These Merchant Terms of Service (these “Terms”) constitute a legally binding agreement between Merchant (as defined below) and Enrich & Co., LLC, a Georgia limited liability company (“Provider”). Provider and Merchant may be referred to herein collectively as the “Parties” or individually as a “Party.” By accessing or using the Services, Merchant hereby agrees to these Terms, the Applicable Policies, the User Agreement and all other guidelines or policies referenced herein (collectively, the “Agreement”), all of which are incorporated herein by this reference. IF MERCHANT DOES NOT AGREE WITH ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, THEN MERCHANT IS EXPRESSLY PROHIBITED FROM USING THE SERVICES AND MUST DISCONTINUE USE IMMEDIATELY. This Agreement shall become effective as of the Effective Date.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions.
    • Applicable Policies” means Provider’s Privacy Policy, Shipping Policy, Return and Exchange Policy, Cancellation Policy, and all other guidelines or policies referenced herein.
    • Authorized User” means Merchant’s employees, consultants, contractors, and agents (i) who are authorized by Merchant to access and use the Services under the rights granted to Merchant pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
    • Customer” means an individual who is a customer of Merchant.
    • Customer Data” has the meaning set forth in the Privacy Policy.
    • “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Merchant either electronically or in hard copy form/end user documentation relating to the Services.
    • Effective Date” means the date on which Merchant purchases the Services from Provider and agrees to be bound by these Terms and the terms of the Applicable Policies, all of which are incorporated herein by reference.
    • Fees” means the fees owed by Merchant to Provider in exchange for the Services.
    • Hardware” means any hardware required for Merchant to utilize the Services.
    • Merchant” means the person or entity that has agreed to purchase the Services from Provider and use the Services in accordance with this Agreement.
    • Merchant Data” means, other than Provider Data and Customer Data information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Merchant or an Authorized User through the Services.
    • Provider Data” means data and information related to Merchant’s use of the Services that is used by Provider [in the manner described in the Privacy Policy], including to compile statistical and performance information related to the provision and operation of the Services.
    • Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Merchant or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Provider Data and any other information, data, or other content derived from Provider’s monitoring of Merchant’s access to or use of the Services.
    • Services” means Provider’s salon management software, Mango for Salon, the Site, and any applications, support, or services related thereto or otherwise provided to Merchant by Provider.
    • “Site” means Provider’s Mango for Salon website (https://mangoforsalon.com).
    • “Subscription” means Merchant’s monthly subscription to use the Services in accordance with the terms of this Agreement.
  2. Supplements or Amendments to Agreement. Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. Provider reserves the right, in its sole discretion, to make changes or modifications to these Terms or any Applicable Policies at any time and for any reason. Provider will alert Merchant about any changes by updating the “Last updated” date of these Terms, and Merchant hereby waives any right to receive specific notice of each such change. It is Merchant’s responsibility to periodically review these Terms to stay informed of updates. Merchant will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms or Applicable Policies by Merchant’s continued use of the Services after the date such revised Terms or Applicable Policies are posted.
  3. Access and Use.
    • Provision of Access. Subject to and conditioned on Merchant’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Merchant a non-exclusive, non-transferable (except in compliance with Section 13(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Merchant’s internal use. Provider shall provide to Merchant the necessary passwords and network links or connections to allow Merchant to access the Services. Merchant understands and agrees that certain Hardware is required to use the Services and that Merchant shall be responsible for purchasing any Hardware. Any costs associated with purchasing Hardware from Provider shall be included in the Fees and paid at the time the order for such Hardware is placed.
    • Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Merchant a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13(g)) license to use the Documentation during the Term solely for Merchant’s internal business purposes in connection with its use of the Services.
    • Use Restrictions. Merchant shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Merchant shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    • Reservation of Rights. Provider reserves all rights not expressly granted to Merchant in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Merchant or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
    • Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Merchant’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Merchant’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Merchant or vendor of Provider; (C) Merchant, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Merchant has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Merchant or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Merchant to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Merchant and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Merchant or any Authorized User may incur as a result of a Service Suspension.
    • Provider Data. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Merchant’s use of the Services and collect and compile Provider Data. As between Provider and Merchant, all right, title, and interest in Provider Data, and all intellectual property rights therein, belong to and are retained solely by Provider. Merchant acknowledges that Provider may compile Provider Data based on Merchant Data input into the Services. Merchant agrees that Provider may (i) make Provider Data publicly available in compliance with applicable law (provided that any Merchant Data included in the Provider Data will be anonymized prior to any public disclosure), and (ii) use Provider Data to the extent and in the manner permitted under applicable law.
  4. Merchant Responsibilities; Representations
  1. Fees and Payment.
    • Fees. Merchant shall pay Provider the Fees without offset or deduction. Merchant shall be charged by Provider automatically on a monthly basis using the payment information given by Merchant to Provider at the time the Subscription is purchased. If Merchant fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Merchant shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Provider may suspend Merchant’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
    • Taxes. All Fees and other amounts payable by Merchant under this Agreement are exclusive of taxes and similar assessments. Merchant is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Merchant hereunder, other than any taxes imposed on Provider’s income.
  2. Confidential Information. From time to time during the Term, Provider may disclose or make available to Merchant information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to Merchant at the time of disclosure; (c) rightfully obtained by Merchant on a non-confidential basis from a third party; or (d) independently developed by Merchant. Merchant shall not disclose Provider’s Confidential Information to any person or entity, except to Merchant’s employees who have a need to know the Confidential Information for Merchant to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, Merchant may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided Merchant shall first have given written notice to Provider and made a reasonable effort to obtain a protective order; or (ii) to establish Merchant’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, Merchant shall promptly return to Provider all copies, whether in written, electronic, or other form or media, of the Merchant’s Confidential Information, or destroy all such copies and certify in writing to Merchant that such Confidential Information has been destroyed. Merchant’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to Merchant; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  3. Intellectual Property Ownership; Feedback.
    • Provider IP. Merchant acknowledges that, as between Merchant and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
    • Merchant Data
    • Feedback. If Merchant or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Merchant hereby assigns to Provider on Merchant’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
  4. Warranty Disclaimer. THE PROVIDER IP AND SERVICES ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET MERCHANT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  5. Indemnification. Merchant shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Merchant Data, or any use of the Merchant Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Merchant’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Merchant may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
  6. General Release; Limitations of Liability.
    • IN NO EVENT WILL PROVIDER OR PROVIDER’S OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, OR AGENTS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS PROVISION OF THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS LESS.
    • BECAUSE PROVIDER IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMER, BUSINESSES OR OTHER MERCHANT DEALINGS, IF A DISPUTE ARISES BETWEEN MERCHANT AND A CUSTOMER, MERCHANT HEREBY AGREES TO RELEASE PROVIDER (AND ITS AGENTS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
  7. Modifications and Interruptions. Provider reserves the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, Provider has no obligation to update any information on the Site. Provider also reserves the right to modify or discontinue all or part of the Site without notice at any time. Provider will not be liable to Merchant or any third party for any modification, price change, suspension, or discontinuance of the Site. Provider cannot guarantee the Site will be available at all times. Provider may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. Provider reserves the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to Merchant. Merchant agrees that Provider has no liability whatsoever for any loss, damage, or inconvenience caused by Merchant’s inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms will be construed to obligate Provider to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.
  8. Term; Termination and Cancellation of Subscription.
    • Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until Merchant’s Subscription for the Services is cancelled (the “Term”).
    • Termination and Cancellation of Subscription. In addition to any other express termination right set forth in this Agreement:
      • Provider may terminate this Agreement and cancel Merchant’s Subscription at any time if Merchant breaches any of its obligations under this Agreement.
      • Merchant may terminate this Agreement by cancelling Merchant’s Subscription in accordance with Provider’s Cancellation Policy.
      • Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Merchant shall immediately discontinue use of the Provider IP and, without limiting Merchant’s obligations under Section 6, Merchant shall delete, destroy, or return all copies of the Provider IP and, if requested by Provider, certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Merchant’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Merchant to any refund.
    • Survival. This Section 12(d) and Sections 1, 5, 6, 7, 8, 9, 10, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
  9. Miscellaneous.
    • Entire Agreement. This Agreement, together with any other documents incorporated herein by reference constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, and (ii) second, any other documents incorporated herein by reference.
    • Notices. Visiting the Site, sending Provider emails, and completing online forms constitute electronic communications. Merchant consents to receive electronic communications, and Merchant agrees that all agreements, notices, disclosures, and other communications Provider provide to Merchant electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. MERCHANT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. Merchant hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
    • Force Majeure. In no event shall Provider be liable to Merchant, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, pandemic, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in the city of Atlanta and County of [Fulton?], and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • Assignment. Merchant may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. For purposes of this Agreement, a change of control of Merchant shall constitute an attempted assignment. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    • Export Regulation. Merchant shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Merchant Data outside the US.
    • Equitable Relief. Merchant acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or Section 3(c) would cause the Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Read and Understood. Each Party acknowledges that it has read, and that it understands, this Agreement and agrees to be bound by its terms.
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