1. General Terms
- This Agreement is a binding legal agreement between you and the applicable GO SESH INC. GO SESH INC and its affiliates, subsidiaries, and each of its and their respective officers, directors, agents, partners and employees are all referred to in these Terms collectively as “GO SESH”, “we”, “us” or “our”.
- If you are a User located in the United States, you are contracting with GO SESH Inc with head offices in 19266 Costa Hwy, Unit 4-1019, Rehobooth Beach, DE 19981, USA (“GO SESH INC”).
- If you are a User located in the United Kingdom, you are contracting with GO SESH LIMITED with head offices in 24 International House, Holborn Viaduct, London, England EC1A2BN (“GO SESH LIMITED”).
- The term "our online services" refers to all products offered our website, our mobile and tablet applications, our pages on third party social media platforms such as Instagram, Facebook, Twitter, Pinterest and Google+ and any other websites or apps we own or run from time to time.
- The term "our services" refers to our online services and any of our other products and services, offered from time to time.
- If you use any of our services, we will refer to you using the terms "user", "visitor", "you", "your", "yours" in this policy.
- If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity.
- You and GO SESH are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
- This Agreement applies to any use of GO SESH’s Services.
1.3 CHANGES TO AGREEMENT
We continuously strive to improve our products and services, and as our business evolves, this agreement may change. This section describes how we can change the agreement.
- We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our Website, and we agree the changes will not be retroactive.
- If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email.
- If you continue using the Services after any changes, it means you are agreeable to the updated terms and have accepted them.
- If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing us.
- It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on our Website.
- The legend at the top of the Agreement indicates when it was last changed.
Our software will meet the uptime requirements described in our Service Level Agreement.
2.1 ACCESS AND SERVICE LEVELS
GO SESH will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term, the Software Services will meet the service levels relative to the subscription plan that you have chosen, these levels may be updated by SESH from time to time at our discretion.
2.2 CHANGES TO SERVICES
We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
- Notwithstanding Section 2.1, in addition to our rights set forth in Section 17, we reserve the right to suspend any Services (a) during planned downtime, (b) in connection with a Force Majeure event (as described in Section 32) if we believe any malicious software is being used in connection with your account. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time.
- If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
- We are not responsible for any third party products that are integrated with or used in connection with the Services.
3. THIRD PARTY OFFERINGS
- Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder.
- The availability of any Third Party Offerings through the Services does not imply GO SESH endorsement of or affiliation with the provider.
- GO SESH does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings.
- SESH has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting SESH to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering.
- YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
- Your base subscription fees include our standard support services. You may also purchase Premium Services for an additional fee.
4. SUPPORT SERVICES
- As part of the Services, you will have access to GO SESH standard support services, as may be updated by SESH from time to time.
- Our Premium Services allow GO SESH to leverage our optional marketing services to drive business to you. Subscribing to a Premium Services is voluntary, and you may sign up through our through our platform.
- If you choose to participate, you agree to pay any related fees.
5. MARKETING SERVICES
- When you subscribe to our Software Service, your business will automatically be listed on the GO SESH online marketing platform (the “ GO SESH Marketing Platform”), which allows consumers to locate GO SESH subscribers and evaluate, review and book their services, directly through the GO SESH App and through our partner applications.
- From time to time, GO SESH may offer subscribers the opportunity to participate in marketing services programs (“Marketing Services”), which are designed to promote their businesses and attract customers through the GO SESH Marketing Platform.
- GO SESH reserves the right to charge fees for Marketing Services in accordance with the Marketing Services Terms. If you enroll in Marketing Services, you agree to pay all applicable fees for Marketing Services in accordance with Section 11.2 of this Agreement.
- In the event of any conflict between this Agreement and the Marketing Services Terms, the Marketing Services Terms will apply.
6. TRIAL AND BETA SERVICES
We are not responsible for any damages resulting from your use of any trial or beta services.
- GO SESH may in its sole discretion offer trial services or beta services from time to time at no charge. Any trial or beta services are provided “AS IS” with no warranties of any kind.
- GO SESH may discontinue any trial or beta services at any time, with or without notice and without any further obligations to you.
- GO SESH will have no liability for any harm or damages suffered by you or any third party in connection with any trial or beta services.
- The free trial offered to you shall last for a period determined by the GO SESH team upon initial sign up, information about the number of days left on your trial can be viewed from the Membership Page and stated under the membership plan you chose to trial. After the free trial period has expired, regular price for the subscription service will be charged.
- All customers signing up for the free trial will be required to submit payment card details as part of the process to allow automatic payments once the free trial period finishes.
- Should you not wish to continue the subscription service once the free trial ends, you must cancel the service by emailing our support staff at [email protected], through which you will be guided through our cancellation process. Alternatively, you will be able to cancel your subscription via the cancellation link on our website, a link will be automatically sent to your email where you will be guided through our cancellation process. This must be done 3 working days before the trial ends. Reminder emails will be sent 7 days before the first payment is due.
- Notice will be sent if payment fails for any reason. It is your responsibility to make sure that all payment details are correct to allow successful renewal payments.
- GO SESH reserves the right to remove or cancel the free trial offer at any time.
- GO SESH reserves the right to change the features of the free trial offer at any time.
- GO SESH General Terms and Conditions Apply.
- GO SESH reviews all subscriptions and reserves the right to deny or cancel subscription packages at any time and for any reason.
Downgrading your membership is an easy 2 step process
- Visit the billing section of your account located HERE
- If you wish to downgrade to the ALL STAR plan click 'Downgrade to All Star ($49 per month)' or if you wish to downgrade to the free BASIC plan, please complete the survey and click 'Send'.
7. YOUR RESPONSIBILITIES
7.1 LIABILITY FOR AFFILIATES AND END USERS
You are responsible for making sure that your Affiliates and End Users comply with the terms of this agreement and applicable laws.
- You are responsible for all activity occurring under your account.
- You will ensure that your Affiliates and End Users comply with all of the provisions of this Agreement and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services.
- Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use by Affiliates and End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you.
7.2 DATA RESPONSIBILITY
In connection with using the Services You will:
- have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; prevent unauthorized access to, or use of, the Services, and notify GO SESH promptly of any unauthorized access or use; and
- have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
8. RESTRICTIONS ON USE
You agree NOT TO DO the following in connection with using the Services.
You and your Affiliates will not:
- submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights;
- interfere with or disrupt the integrity or performance of the Services or the data contained therein;
- attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement;
- post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs;
- restrict or inhibit any other person or entity from using the Services;
- remove any copyright, trademark or other proprietary rights notice from the Services;
- frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service;
- systematically download and store Services content; or (ix) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services.
Notwithstanding subsection 8.1(h) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, GO SESH grants to the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials.
GO SESH reserves the right to revoke these permissions at any time and without notice.
9. CARDHOLDER DATA
You are liable if any Cardholder Data is mishandled under your account.
- You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
10. USERNAMES AND PASSWORDS
You will ensure all user names and passwords are kept confidential.
- GO SESH may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of GO SESH.
- You, and not GO SESH, are responsible for any use or misuse of user names or passwords associated with your account.
11. FEES AND PAYMENT
TRAINER FEES & PAYMENTS
- Basic account - $2 transaction fee
- All Stars - $49 monthly Subscription (no transaction fees from GO SESH)
- MVP - $99 Monthly Subscription (no transaction fees from GO SESH)
(Extra fees may be incurred from payment gateway depending on the trainer's bank)
This describes our fees and your payment obligations.
11.1 Cancellations and Refunds
- If, as a Trainee, you cancel your requested Booking before the requested Booking is confirmed by a Host, GO SESH Payments will cancel any pre-authorization to your Payment Method and/or refund any nominal amounts charged to your Payment Method in connection with the requested Booking within a commercially reasonable time. If, as a trainee, you wish to cancel a confirmed session made via the Site, Application and Services, either prior to or after arriving at the Session, GO SESH Payments will refund the session Fees, trainee Fees and any other amounts charged to you only as permitted under the GO SESH Terms, including the terms of the applicable cancellation policy.
- If a Trainer cancels a confirmed Booking made via the Site, Application or Services, GO SESH Payments will refund the Total Fees for such Booking to the applicable trainee within a commercially reasonable time of the cancellation. If the trainee requests to book an alternative session and the trainer associated with such alternative Listing confirms the trainees requested Booking, then GO SESH Payments will collect the Total Fees relating to the confirmed Booking for the session in the alternative Listing, in accordance with these Payments Terms.
- If, as a trainer, you cancel a confirmed Booking, you agree that GO SESH Payments may collect any cancellation fees imposed pursuant to the GO SESH terms. GO SESH Payments will treat your cancellation as a payment authorization, and GO SESH Payments may withhold any cancellation fees from your future payouts or charged to any Payment Method on file in your GO SESH Account.
- If we decides for any reason that it is necessary or desirable to cancel a confirmed Session made via the Site, Application and Services pursuant to the GO SESH Terms, Trainee Terms of extenuating circumstances policy, you agree that GO SESH Payments and the relevant Guest or trainer will not have any liability for such cancellations or refunds.
- If, as a Trainer, your Guest cancels a confirmed Booking or we decide that it is necessary to cancel a confirmed session, and GO SESH issues a refund to the trainee in accordance with the refund policy or other applicable cancellation policies, you agree that in the event you have already been paid, GO SESH Payments will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future Accommodation Fees due to you.
12. INTELLECTUAL PROPERTY RIGHTS
This describes our intellectual property rights in the Services.
12.1 SESH INTELLECTUAL PROPERTY
- GO SESH owns all right, title and interest in and to the Services, the GO SESH Data and Aggregated Data, including, without limitation, all intellectual property rights therein.
- Subject to the limited rights expressly granted to you under this Agreement, GO SESH reserves all rights, title and interest in and to the Services, the GO SESH Data and Aggregated Data, including, without limitation, all related intellectual property rights. GO SESH service marks, logos and product and service names, are owned by GO SESH.
- You agree not to display or use any GO SESH Marks in any manner without SESH express prior written permission.
- Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
12.2 LICENSE GRANT TO YOU
You are only allowed to use the Services in accordance with this agreement and for internal business purposes.
- Subject to the terms and conditions of this Agreement, GO SESH hereby grants to you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes
- You will not:
- modify, copy or create any derivative works based on the Services;
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein;
- reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by GO SESH in the provision of the Services;
- access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services;
- copy any features, functions, integrations, interfaces or graphics of the Services; or
- otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
12.3 LICENSE GRANT TO SESH
You grant us a license to use your feedback, trademarks and logos in connection with providing the Services and for general marketing purposes.
- You hereby grant to GO SESH and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or GO SESH business; and
- to use your business name(s), trademarks, service marks or logos (collectively, “Your Marks”) in connection with providing the Services and for marketing and promotional purposes in connection with the GO SESH business. We agree that any use by us of any of Your Marks will be solely to the benefit and goodwill of your business.
- Other than those rights specifically granted to GO SESH herein, all right, title and interest in and to Your Marks are expressly reserved by you.
13. DATA OWNERSHIP AND USE
13.1 YOUR DATA
You own all data you provide to us, but you also grant us a license to use it for certain purposes, for example, to improve our products or to provide you with complementary products of our partners.
- As between you and GO SESH, you own all right, title and interest in Your Data.
- You hereby grant to us a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing GO SESH products and services and/or complementary products and services of our partners.
- You represent and warrant to us that you have all rights necessary to grant the licenses in this Section 13.1 above, and that your provision of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
13.2 SESH DATA
This describes our rights in data that we collect through independent sources, like the GO SESH website and application.
- Notwithstanding Section 13.1 above, all right, title and interest in any data or information collected by GO SESH independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information we obtains about End Users through the GO SESH App (whether the same as Your Data or otherwise), will be solely owned by GO SESH (collectively, “SESH Data”).
- We will own all Aggregated Data.
13.3 AGGREGATED DATA
- GO SESH will own all Aggregated Data.
- You agree that nothing in this Agreement will prohibit GO SESH from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users.
13.4 PERSONAL INFORMATION
13.5 PROTECTION AND SECURITY
We have controls in place to prevent outside parties from stealing or accessing Your Data.
- During the Subscription Term, GO SESH will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data.
- GO SESH will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data.
- We will notify one another if either of us becomes aware that Your Data has been compromised.
13.6 UNAUTHORIZED DISCLOSURE
- If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party.
- Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
- We are not responsible for resolving or intervening in any dispute over Your Data.
13.7 DATA-RELATED DISPUTES
- You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees or contractors of your business.
- You acknowledge and agree that GO SESH has no obligation whatsoever to resolve or intervene in such disputes.
14. TRAINER – INSURANCE OBLIGATIONS
This describes the legal relationship specifically to trainers using the Services.
- It is a non-negotiable essential condition for service that if you are a Trainer using this Service, that you hold at all times professional indemnity insurance to cover the cost of defending your business against allegations of professional negligence (such as giving your client incorrect or wrongful advice) and if unsuccessful, the cost of damages awarded against you.
Examples of claims include:
If you advise a client how to perform an exercise, however they fall while doing it and injure themselves. They take legal action against you, alleging you failed to properly explain the move. Or you produce a personalised training plan for a client, however they don’t achieve the goals they were promised. They take legal action against you, alleging your training was inadequate.
- You agree that insurance is vital for advising clients on their fitness routine, and you agree that you will hold cover for the amounts required for your specific training type and structure.
15. CONFIDENTIAL INFORMATION
This describes the confidentiality obligations we have to one another under the agreement.
A PARTY WILL NOT DISCLOSE OR USE ANY CONFIDENTIAL INFORMATION OF THE OTHER PARTY EXCEPT:
- as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement;
- with the other Party's prior written permission; or
- to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care.
CONFIDENTIAL INFORMATION WILL NOT INCLUDE ANY INFORMATION THAT:
- is or becomes generally known to the public without breach of any obligation owed to the disclosing Party;
- was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party;
- was independently developed by a Party without breach of any obligation owed to the other Party; or
- was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 15 will restrict GO SESH with respect to GO SESH Data or Aggregated Data.
16. TERM, TERMINATION AND SUSPENSION
We can each end this Agreement anytime by providing 30 days’ advance notice.
- Unless otherwise specified in an Order Form, the term of this Agreement will be month to month (“Subscription Term”). The Subscription Term commences on the Effective Date and will automatically renew on a monthly basis until either Party terminates in accordance with this Agreement. Either Party may terminate the Agreement at any time, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the relevant Subscription Term.
- Unless otherwise specified in an Order Form, Subscription Fees during any automatic renewal term will revert to the current pricing in effect at the time such renewal term commences.
We have the right to end the Agreement immediately if you breach it.
16.2 TERMINATION FOR CAUSE
- GO SESH may terminate this Agreement, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement.
- In the event of a termination pursuant to this Section 16.2, in addition to other amounts you may owe GO SESH, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term.
- In no event will any termination relieve you of your obligation to pay any fees payable to SESH for the period prior to the effective date of termination.
17. RIGHTS ON TERMINATION OR EXPIRATION
This describes what will occur and the rights that apply when the Agreement is terminated.
- UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT
- all Order Forms will automatically terminate and be of no force or effect;
- you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and
- except as specified in the following paragraph, SESH will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
- Upon request by you within thirty (30) days following termination of this Agreement, and provided that you have paid GO SESH all amounts owed under this Agreement, GO SESH will make Your Data available to you through GO SESH standard web services for a period of up to thirty (30) days after receipt of such notice.
- After such thirty (30) day period, we will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require our assistance in retrieving Your Data, additional fees may apply.
18. TERMS THAT SURVIVE TERMINATION
- The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 3, 6, 7, 11 (other than Section 11.1), 12, 13, 15, 16.2, 17.1, 18, 23, 24, 25, 26, 27 and 29.
- We have the right to suspend or terminate the Services at any time if we detect harmful or illegal activity under your account.
19. RIGHT TO TERMINATE OR SUSPEND SERVICES
- We may suspend or terminate the Services (or any portion thereof) at any time without notice if we believe that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to GO SESH or any third party, or that we are required to do so by law.
20. WARRANTIES AND DISCLAIMER
You are responsible for keeping your account contacts and other account information up to date, and you must notify us if anything changes.
20.1 ACCURACY OF YOUR ACCOUNT INFORMATION
- You agree to provide GO SESH with complete and accurate account information, including your legal company name, street address, e-mail address, and such other contact information as may be requested by GO SESH. You are responsible for keeping your account information up to date, and you agree to promptly notify us in writing if any information changes.
- We guarantee that the software will generate reports and perform functions as generally described on our Website.
20.2 WARRANTY OF FUNCTIONALITY
GO SESH warrants to you that during a Subscription Term:
- the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and
- such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that we will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If we is unable to restore such functionality, you may terminate the Agreement by providing written notice to GO SESH, and you will be entitled to receive a pro-rata refund of any pre-paid fees. GO SESH will have no obligation with respect to a warranty claim under this Section 20.2 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem.
- This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any trial or beta services.
This is our disclaimer of legal liability for the quality, safety, or reliability of our Services.
- EXCEPT AS EXPRESSLY PROVIDED IN SECTION 20 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GO SESH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. GO SESH DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 20.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH SESH AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “SESH PARTIES”).
If legal action is taken against GO SESH by another party where the root and resultant effect is directly or indirectly caused by your actions, you hereby indemnify GO SESH and agree to bear all costs associated with the action or claim.
- You agree to indemnify, defend, and hold harmless GO SESH from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to:
- any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement;
- any access to or use of the Services by you, an Affiliate or End User;
- any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and
- any dispute between you and another party regarding ownership of or access to Your Data.
23. LIMITATIONS AND EXCLUSIONS OF LIABILITY
These are the limits of legal liability we may have to you.
- GO SESH EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY SESH. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GO SESH PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH SESH AND THE SESH PARTIES.
- IN NO EVENT WILL ANY SESH PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IFSESH , ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
24. INTELLECTUAL PROPERTY POLICY
Any information and data submitted to the Services must not violate the intellectual property rights of third parties.
- GO SESH respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property Policy that may be updated by SESH from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy.
Delaware State Law will apply to this Agreement.
25.1 LAW AND JURISDICTION
- These Terms are governed by the laws of the State of Delaware, without regard to its conflict of laws rules. These laws will apply no matter where in the world you live. But if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law. GO SESH is based in Delaware, and any legal action against GO SESH related to our Services and that is not precluded by the arbitration provisions (Section 26) in these Terms must be filed and take place in Delaware. Thus, for any actions not subject to arbitration, you and GO SESH agree to submit to the personal jurisdiction of the federal or state courts (as applicable) located in Delaware.
In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process.
25.2 MANDATORY INFORMAL DISPUTE RESOLUTION.
- If you have any dispute with GO SESH arising out of or relating to this Agreement, you agree to notify GO SESH in writing with a brief, written description of the dispute and your contact information, and GO SESH will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction.
- If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.
If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court.
26. ARBITRATION AGREEMENT
- Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration.
- The number of arbitrators shall be one.
- The seat, or legal place, of arbitration shall be in Delaware, United States.
- The language to be used in the arbitral proceedings shall be English.
- The governing law of the contract shall be the substantive State Laws of Delaware.
27. ENTIRE AGREEMENT
This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and GO SESH with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between GO SESH, on the one hand, and you or any Affiliate, on the other hand.
28. WAIVER AND SEVERABILITY
- No waiver of any provision of this Agreement by GO SESH will be effective unless in writing and signed by GO SESH.
- No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
- If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
You may not assign, delegate or transfer this Agreement in whole or in part, without our prior written consent. We may assign, transfer or sublicense any or all of GO SESH rights or obligations under this Agreement without restriction.
This explains how we can send each other notices in connection with this Agreement
- Any notices provided by SESH under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account.
- You hereby consent to receive notice from GO SESH through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.
- Except as otherwise specified in the Agreement, any notices to GO SESH under this Agreement must be delivered via registered post to 19266 Coastal Hwy, Unit 4-1019, Rehobooth Beach, DE, 19981 USA.
31. OUR DETAILS
- Our US website is owned and operated by GO SESH INC.
- We are registered in Delaware, United States, and our registered office is at 19266 Coastal Hwy, Unit 4-1019, Rehobooth Beach, DE, 19981 USA.
- Our UK website is owned and operated by GO SESH LIMITED.
- We are registered in England and Wales, and our registered office is at 24 International House, Holborn Viaduct, London, England EC1A2BN
- Our principal place of business is 19266 Coastal Hwy, Unit 4-1019, Rehobooth Beach, DE, 19981 USA.
- You can contact us:
- by post, using the postal address given above;
- using our website contact form;
- by telephone, on the contact number published on our website from time to time; or
- by email, using the email address published on our website from time to time.
32. FORCE MAJEURE
We are not liable for things that are out of our control like natural disasters.
- Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labour problems (other than those involving GO SESH or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility.
- Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
33. ELECTRONIC COMMUNCATIONS AND SIGNATURES
- You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services.
- Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
34. RELATIONSHIP OF THE PARTIES
This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and GO SESH.
For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
“Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of GO SESH and that does not reveal any personally identifying information.
“API” means GO SESH application programming interface that is described at https://developers.seshonline.com (or such other URL as specified by GO SESH), as may be updated by GO SESH from time to time, and any subsequent application programming interfaces that are developed and made available by GO SESH to interact with or otherwise be used in connection with the Services.
“Apps” means any mobile applications through which GO SESH makes the Software Service available, including GO SESH Express and Engage by GO SESH. “Apps” excludes the GO SESH App.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.
"Confidential Information" means (a) any software utilized by GO SESH in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document.
“Documentation" means GO SESH online user guides, documentation, and help and training materials, as may be updated by SESH from time to time, and any other materials provided by GO SESH as part of the Services.
“End User” means a business or individual that schedules or purchases products or services from you through the Services or otherwise interacts with you through the Services.
“End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users.
“Franchisee” means any party that is bound by a franchise agreement with you, and that you have designated to receive Services under this Agreement. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.
“GO SESH Marketing Platform” means GO SESH online marketing platform, which allows consumers to locate GO SESH subscribers and evaluate, review and book their services, directly through the GO SESH App and through our partner applications.
“GO SESH App” means the consumer-facing, downloadable mobile app made available by GO SESH and known as the “GO SESH App” (and its successor products), which allows consumers to use their mobile devices to find, book and pay for the services of participating GO SESH subscribing businesses.
“Order Form” means a separate ordering document, invoice or other documentation that specifies the Services purchased hereunder, the applicable fees, and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
“PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://SESH.pcisecuritystandards.org/, and as may be updated from time to time.
“Premium Services” means GO SESH supplemental, fee-based support services, as may be updated by GO SESH from time to time.
“Services” means the Software Services, the Website and the Apps. “Services” excludes Third Party Offerings and the GO SESH App.
“Software Service” is defined in the Introduction.
“Third Party Offerings” means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.
“Website” means www.gosesh.co and any other websites through which SESH makes the Software Service available.
“Your Data” means any data, information or material provided or submitted by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data, but excludes Aggregated Data.