PLEASE REVIEW THESE PHORESTTIPS TERMS AND CONDITIONS – SALONS EMPLOYEES (THESE “PHORESTTIPS TERMS” OR “TERMS”) CAREFULLY BEFORE BROWSING THE [PHOREST WEBSITE]. USING THE [PHOREST WEBSITE] AND/OR ANY PHOREST OFFERINGS INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “YOU” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “YOU” REFERS TO THAT ENTITY. YOU CANNOT USE THE EDGE IMPULSE OFFERINGS IF YOU DO NOT ACCEPT THESE TERMS.
1. Introduction.
1.1 PhorestTips is a cloud-based software-as-a-platform service (PhorestTips), which is operated by NDEVOR SYSTEMS LIMITED (reg. no. 369210) having its registered address at 9 Anglesea Row, Dublin 7, Ireland (trading as PHOREST under registered business name no. 241895) (Phorest, we/ our, us) to enable stylists, colourists, beauticians, barbers, therapists, technicians, clinicians and other hair and beauty professionals who are employees (Salon Employees, Users or you) of participating salons, barber shops, spas, medi-aesthetic clinics or other businesses (Salon) to collect gratuities or tips (Tips) directly from Salon end customers (End Customers).
1.2 PhorestTips is available to Salon Employees through the current version of the PhorestGo 2.0 mobile application (PhorestGo) in combination with the Salon’s Phorest desktop application or web application (the Platform). You must download PhorestGo and fully register a PhorestTips account (Account) to use the PhorestTips service.
1.3 These Terms govern your use of PhorestTips where you are acting as a Salon Employee. These PhorestTips Terms should be read in conjunction with the Phorest Platform Privacy Policy and Phorest Cookie Policy available https://www.phorest.com/us/privacy/staff/ (the Phorest Privacy Policy), the sole and entire agreement between you and us with respect to your purchase and/or access to and use of PhorestTips.
1.4 PhorestTips Accounts (as defined below) are provided in partnership with Stripe, which is Phorest’s third-party payments processing services provider (Stripe). When you use PhorestTips, you are also agreeing to and will have a direct contractual relationship with Stripe pursuant to Stripe’s terms of service (the Stripe Terms).
1.5 Please read these PhorestTips Terms and the Stripe Terms carefully as your continued use of Stripe and PhorestTips will be subject to your acceptance of the Stripe Terms. Phorest may replace its payment processing services provider at any time without notifying you. In such circumstances, your use of the PhorestTips Account will be subject to the terms of such replacement payment processing services provided. You acknowledge that Phorest takes no part in and bears no responsibility or liability for any portion of the transaction between you and Stripe or any End Customers other than facilitating Tips through PhorestTips.
1.6 Phorest reserves the right to update, replace or otherwise modify these PhorestTips Terms and the PhorestTips service at any time by placing a notice on the Platform and/or otherwise notifying you. If you continue to use PhorestTips after we make such amendments, you will be deemed to accept them.
1.7 There may be times that the Phorest Tips service will be unavailable due to service interruption. Where Phorest receives notification of modifications to the Stripe Terms, Phorest will make reasonable endeavours to notify you of such modifications.
1.8 As a user of PhorestTips, you may have certain rights as a consumer under applicable law where you are located. Nothing in these PhorestTips Terms is intended to affect any such rights (including in respect of Account cancellation).
2. Phorest’s Obligations.
2.1 PhorestTips Account Registration.
(a) Where your Salon has availed of and enables its Salon Employees to use the PhorestTips service, in order to access the PhorestTips service, you must first download PhorestGo 2.0 app and set up a PhorestGo profile linked to the relevant Account set up by your applicable Salon.
(b) Phorest will then initiate the enrolment of a pre-registered Account for you using data provided by your applicable Salon in accordance with the Salon’s privacy notice (Pre-Registered Account) by passing certain Account data to Stripe in accordance with the Phorest Privacy Policy.
(c) To fully activate your Pre-Registered Account, you will then be required to follow the registration process provided to you by Phorest (Account Setup Notification) directing you to follow Stripe’s identity verification and other onboarding processes and to accept the Stripe Terms, as indicated and required by Stripe to complete the Account registration process.
(d) Once an Account has been successfully created for you, Phorest will then liaise with Stripe in relation to the management and provision of access to your Account pursuant to these PhorestTips Terms.
(e) You hereby authorise Phorest to access and use your Account data and to share such data with your applicable Salon and Stripe as may be required in connection with our provision and your use of the PhorestTips service to you.
2.2 Collection of Tips and PhorestTips Fee.
(a) While enabling payment services to be provided by Stripe for Salon services provided by you to End Customers Phorest will provide such End Customers with an option to include a Tip which will be paid directly to the User’s Account.
(b) The option to pay the Tip will also include an option to cover the cost of providing PhorestTips to you, which shall be equal to five per cent (5%) of the total Tip value, (the PhorestTips Fee) for each Tip transaction as follows:
(i) where an End Customer opts to pay the PhorestTips Fee, one hundred percent (100%) of such Tip will be paid to you through Stripe; or
(ii) where an End Customer declines to pay the PhorestTips Fee, the PhorestTips Fee will be deducted from the relevant Tip and you will be paid the balance through Stripe.
(c) Where an Account has not been successfully created in accordance with these PhorestTips Terms and the Stripe Terms within thirty (30) calendar days from the date upon which a threshold of USD or CAD (as applicable) $1,000 has been exceeded by the Pre-Registered Account in Tips (the Account Setup Deadline), any Tips which have been paid in the manner described above will be returned to End Customers on the Account Setup Deadline following a final Account setup reminder notification provided to you.
2.3 Payment of Tips and Disbursements.
(a) Pursuant to these PhorestTips Terms, you authorise Phorest to pass instructions to Stripe on your behalf to enable Stripe to provide the Stripe services as described in and pursuant to the Stripe Terms for the payment of the Tips to your Account.
(b) Phorest has no discretionary authority over funds which are paid by End Customers to Accounts.
(c) Disbursements from your Account to your linked bank account will be processed in accordance with the Stripe Terms.
2.4 Phorest Access to PhorestTips Accounts and Data.
(a) Phorest will provide Users access to a Stripe statement in PhorestGo, showing payments made to and disbursements made from Accounts, including information on any PhorestTips Fees incurred in the relevant period.
(b) Phorest will have access to your Account for all purposes necessary to make available and provide PhorestTips to you and other Users and to Salons, including, but not limited to, Phorest’s provision of customer service and related fraud management and Account activity monitoring.
3. Salon Employee’s Obligations.
3.1 As a user of the PhorestTips service, you agree to:
(a) use PhorestTips for its intended purpose only;
(b) treat the Salon’s PhorestPay card payment terminal with due care; provide information that is accurate and complete in the Account registration process and thereafter provide any relevant information relating to the relevant Account to Phorest where requested;
(c) not permit any other person to access your Account or to withdraw funds from your Account; and
(d) comply with these PhorestTips Terms and all applicable laws.
3.2 The following restrictions govern your use of PhorestTips and your Account. You shall not:
(a) use PhorestTips or your Account in a manner which is fraudulent, deceptive or harmful or in breach of any applicable law, these PhorestTips Terms or the Stripe Terms;
(b) reproduce, copy or sub-license the PhorestTips service;
(c) undertake to remove or modify any notices (including copyright and proprietary) contained within the PhorestTips service;
(d) deploy or employ PhorestTips in a manner to infringe the right, title, or interest, including any intellectual property rights, of Phorest or any third party;
(e) use PhorestTips contravening any applicable law or regulation or to violate the privacy or personal rights of any persons or in a manner that could be construed as or is defamatory, obscene, threatening or abusive; or
(f) use PhorestTips to provide products, services and/or goods relating to the provision of services and/or goods other than those provided in the salon or spa industry.
3.3 You are responsible for all activity initiated by you, your representatives, and any individual or entity using your credentials, including your Account login and password and any of your dashboard or similar services or functions as may be provided by Stripe under the Stripe Terms. Where Phorest incurs any losses, damages or costs based on unauthorised activity or your Account (including in relation to transactions, disputes, refunds, reversals, fines and any use of the PhorestTips services in a manner prohibited under these PhorestTips Terms or the Stripe Terms) then you agree to reimburse Phorest for any such losses, damages or costs incurred by Phorest. Phorest reserves the right to exercise all rights and remedies available where Phorest’s rights are infringed in connection with your use of the PhorestTips service.
4. Privacy.
4.1 Any personal information that you provide to us or that we collect about you will be processed in accordance with the Phorest Privacy Notice – Salons & Salon Employees. This explains what personal information we collect from or about you, why and how we collect, store, use and share it, your rights in relation to it, and how to contact us and supervisory authorities if you have a query or complaint about our use of it. You consent to the collection, use, processing, and disclosure of your personal information as described in the Phorest Privacy Notice – Salons & Salon Employees.
4.2 Any personal information that you provide directly to third parties such as Stripe or to your employer will be processed in accordance with the Privacy Notices of those parties.
5. Tax Reporting; Tax Invoicing.
Phorest will not file any, and you assume sole responsibility and liability for filing all, tax information reports required to be filed in connection with your Account, including without limitation the Tips processed through PhorestTips. You will indemnify Phorest from all taxes, and related interest, penalties and fees (excluding any income, franchise or similar taxes payable), if any, imposed on Phorest as a result of your failure to file any tax information in a timely manner.
For US users, Phorest Inc may issue (via Stripe) a 1099-K form for the gross value of payments to your Account each calendar year, in line with IRS guidelines.
6. Limitation of Liability.
6.1 Phorest does not exclude our liability for anything which cannot be excluded under applicable law, such as death or personal injury caused by gross negligence, willful misconduct, or fraud or fraudulent misrepresentation.
6.2 SUBJECT TO SECTION 6.1, PHOREST WILL NOT BE LIABLE TO YOU FOR ANY LOSSES ARISING DUE TO ANY EVENT OR CIRCUMSTANCE BEYOND OUR REASONABLE CONTROL. YOU WILL BE RESPONSIBLE FOR ALL CLAIMS, LIABILITIES, DAMAGES, COSTS AND EXPENSES INCURRED BY PHOREST AS A RESULT OF YOUR BREACH OF THESE PHORESTTIPS TERMS.
6.3 SUBJECT TO SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE FOR: (A) ANY BUSINESS LOSSES INCURRED OR SUFFERED BY YOU, SUCH AS LOSS OF PROFITS, INCOME, REVENUE, ANTICIPATED SAVINGS, BUSINESS, CONTRACTS, GOODWILL OR COMMERCIAL OPPORTUNITIES; OR (B) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE INCURRED OR SUFFERED BY YOU.
6.4 SUBJECT TO SECTION 6.1, our maximum liability to you in respect of your use of PhorestTips or any matter arising under or in connection with these PhorestTips Terms shall not exceed USD or CAD $500.00 (as applicable).
7. Term and Termination.
7.1 You may cease using PhorestTips by requesting the Salon to disable PhorestTips in your staff profile page on the Salon’s Phorest account. Where this occurs, Phorest will:
(a) Suspend your ability to collect Tips through PhorestTips; and
(b) Instruct Stripe to pay outstanding balances due to you within 60 days minus any amounts owed to Phorest.
7.2 If you choose to close your Stripe account, you will need to follow the steps outlined in the Stripe Terms. The balance of the Stripe account must be at zero to close the Stripe account, and you cannot re-open it once closed.
7.3 Phorest may terminate these PhorestTips Terms by notifying you (including by email):
(a) immediately if you breach these PhorestTips Terms; or
(b) for any other reason, in which case we shall give you at least thirty (30) days’ notice.
7.4 These PhorestTips Terms commence on the date you accept these PhorestTips Terms and shall terminate when:
(a) any notice of termination is served on you by Phorest pursuant to clause 7.3; or
(b) you de-register your Account in accordance with, and subject to, clause 7.1. Phorest will maintain access to Account information for twelve (12) months after de-registration in order to facilitate response to reasonable tax information requests from Users.
8. Disclaimer of Warranties.
8.1 YOU AGREE THAT, YOU RECEIVE THE PHORESTPAY SERVICE ON AN “AS-IS” OR “AS AVAILABLE” BASIS.
8.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PHOREST EXPLICITLY DISCLAIMS ANY AND ALL REPRESENTATIONS, OR WARRANTIES, AND GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ORAL OR WRITTEN, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SUITABILITY, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, WITH REGARDS TO THE PHORESTTIPS SERVICE AND ANY SUCH CONTENT MADE AVAILABLE THROUGH YOUR USE OF PHORESTTIPS (INCLUDING ANY SHARED THIRD-PARTY MATERIALS), AND ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA, CONTENT, OUTPUT OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THE AGREEMENT, WHETHER SUCH REPRESENTATIONS OR WARRANTIES ARISE BY THE OPERATION OF LAW OR OTHERWISE. YOU ACKNOWLEDGE THAT NO METHOD OF TRANSMITTING INFORMATION OVER THE INTERNET OR STORING INFORMATION IS COMPLETELY SECURE. ACCORDINGLY, PHOREST CANNOT GUARANTEE THE ABSOLUTE SECURITY OF ANY INFORMATION. PHOREST SHALL HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED ACCESS, USE, CORRUPTION OR LOSS OF ANY OF YOUR DATA.
9. Governing Law.
The Agreement, and any claim, dispute, action, cause of action, issue, or request for relief (collectively Claims) arising out of or relating to the Agreement or your use of PhorestTips shall be governed by and construed, interpreted and resolved in accordance with the substantive laws of the State of New York without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in New York, New York, and the parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue and waive any objection they may now or hereafter have with respect thereto.
10. MOBILE APPS.
- Mobile Device and Upgrades. Phorest makes available certain software that may be downloaded to a smartphone or tablet (Mobile Apps) to access PhorestTips via a mobile device. To use the Mobile Apps, you must have a mobile device that is compatible with the mobile service. Phorest does not warrant that the Mobile Apps will be compatible with your mobile device. Your license rights with respect to the Mobile Apps are as set forth in these Terms. You acknowledge that Phorest may from time to time issue upgraded versions of the Mobile App and may automatically electronically upgrade the version of the Mobile App that you are using on mobile devices. You consent to such automatic upgrading on your mobile devices and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of a Mobile App or any copy thereof, and Phorest and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile App (and any copy of the Mobile App). Standard carrier data charges may apply to your use of the Mobile App.
- Access to Mobile Apps. You understand that you are only able to use the Mobile App after completing registration for the Mobile App by creating login credentials for signing into and using the Mobile App.
- iOS Apps. The following service specific terms and conditions apply with respect to any Mobile App that Phorest provides to you designed for use on an Apple iOS-powered mobile device (an iOS App): (i) you acknowledge that these Terms are between you and Phorest only, and not with Apple, Inc. (Apple); (ii) your use of Phorest’s iOS App must comply with Apple’s then-current App Store Terms of Service; (iii) Phorest, and not Apple, is solely responsible for Phorest’s iOS App and PhorestTips and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to Phorest’s iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Phorest’s iOS App, (iv) you agree that Phorest, and not Apple, is responsible for addressing any claims by you or any third-party relating to Phorest’s iOS App or your possession and/or use of Phorest’s iOS App, including: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Phorest as provider of the iOS App; (v) you agree that Phorest, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to Phorest’s iOS App or your possession and use of Phorest’s iOS App; (vi) you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties; (vii) you agree to comply with all applicable third-party terms of agreement when using Phorest’s iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App); (viii) you and Phorest agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Phorest’s iOS App. Upon acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
- Android Apps. The following Service Specific Terms and conditions apply with respect to any Mobile App that Phorest provides to you designed for use on an Android-powered mobile device (an “Android App”): (i) you acknowledge that these Terms are between you and Phorest only, and not with Google, Inc. (“Google”); (ii) your use of Phorest’s Android App must comply with Google’s then-current Android Market Terms of Service; (iii) Google is only a provider of the Android Market where you obtained the Android App. Phorest, and not Google, is solely responsible for Phorest’s Android App and PhorestTips and content available thereon. Google has no obligation or liability to you with respect to Phorest’s Android App or these Terms; (iv) you acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Phorest’s Android App.
11 OWNERSHIP AND INTELLECTUAL PROPERTY; ACCESS TO PHORESTTIPS.
11.1 Subject to the limited rights expressly granted hereunder, Phorest reserves all of its rights, title and interest in and to PhorestTips, including all related intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth herein. Ownership in all updates, modifications, new functionalities, enhancements, and customization related to PhorestTips created by or on behalf of Phorest, as well as any suggestion, enhancement request, recommendation, correction or other feedback provided by Saon, will immediately vest in Phorest upon creation or communication to Phorest, as applicable.
11.2 Subject to this Agreement, Phorest hereby grants you a limited, revocable, non-transferable, non-exclusive, non-sublicensable license to access and use PhorestTips during the term of the Agreement in accordance with the applicable documentation for PhorestTips only for your internal business operations and for no other purpose, in each case subject to the terms and conditions of the Agreement. This license may be utilized by you in accordance with the terms of the Agreement.
11.3 If PhorestTips include and make use of functionality and services provided by third parties that allow Phorest to include maps, geocoding, places and other content from Google as part of PhorestTips (“Geo-Location Services”), your use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and by using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use. Geo-Location Services are used at your own risk and location data may not be accurate.
11.4 You may choose to, or Phorest may invite you to, submit comments, suggestions, feedback, feature requests, recommendations, or ideas about or for PhorestTips, including any relating to the performance, features, functions and availability of PhorestTips or how to improve any of PhorestTips (collectively “Ideas”). By submitting any Ideas, Customer agrees that its submissions are non-confidential, voluntary, gratuitous, unsolicited and may be freely and fully used and exploited without restriction and will not place Phorest under any fiduciary or other obligation. Phorest may use, copy, modify, disclose, publish, redistribute and otherwise exploit the Ideas for any purpose and in any way without payment of royalties or any other compensation to you. Phorest is not obligated to hold, keep confidential, use, display, reproduce, implement, or distribute, or otherwise act upon any Ideas. Nothing herein shall be interpreted as imposing an obligation on you to provide Ideas to Phorest or for Phorest to use any Ideas.
12 GENERAL PROVISIONS.
12.1 Assignment. You may not assign to any other party this Agreement or any of your rights or obligations hereunder without Phorest’s prior written consent, not to be unreasonably withheld. Phorest may assign to any other party this Agreement or any of its rights or obligations hereunder, in whole or in part, without your prior consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Assignment will not relieve you of your obligation to pay fees incurred before the assignment. Any attempted assignment in violation of this paragraph is void.
12.2 Force Majeure. Phorest shall not be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, if such delay or failure to perform is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance reasonably beyond the control of the party to be charged.
12.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.4 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.5 Waiver. Any failure by Phorest to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on us unless made in writing.
12.6 Titles and Headings; Interpretation. The section titles in these Terms are for convenience only and have no legal or contractual effect. For the purpose of the construction and interpretation of this Agreement, the word “including” (and variations thereof such as “include” and “includes”) and “such as” will not be deemed to be terms of limitation, but rather to be followed by the words “without limitation.”
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8 Export Control. Each party shall comply with all applicable export laws and regulations of the United States and other jurisdictions. Phorest and you each represent that it is not on any U.S. government denied-party list. You shall not access PhorestTips in a U.S.-embargoed country or region, or in violation of any U.S. export law or regulation.
12.9 Anti-Corruption. Neither party has received or been offered any bribe, kickback, payment, gift, or other similar payment or transfer of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.10 Subcontracting. Phorest may subcontract obligations under the Agreement. Without limitation, Phorest may involve subcontractors to provide you PhorestTips, including hosting, data center, database and security service providers.
