Last Updated: January 23rd, 2024
These Terms of Service (“Terms of Service”) govern your use of the mobile and internet-based services and business tools offered by Espoir PMU (“Espoir PMU,” “we,” “our,” or “us”) to you (“you,” “your” or “Professionals”) at and through the website espoirpmu.com and cardreader.espoirpmu.com (the “Site”), our mobile app (the “App”), the website(s) we allow you to create, and the related services we provide (the Site, App and related services are collectively referred to as the “Espoir PMU Service(s)”). The Espoir PMU Service is a platform that powers the services and businesses of Professionals and facilitates interaction with clients seeking such services (collectively or individually, the “Clients”). In some cases, you may purchase Espoir PMU Services on behalf of other Professionals; in such case you will be an “Account Owner” of the Espoir PMU Services. Account Owners, Professionals and Clients are collectively or individually referred to herein as “Users.” Any subscription or registration related to the Espoir PMU Services (each, a “Subscription”), are subject to these Terms of Service.
THESE TERMS OF SERVICE SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE ESPOIR PMU SERVICES, WHETHER IN CONNECTION WITH A SUBSCRIPTION OR FREE TRIAL, AND REQUIRE MOST DISPUTES BETWEEN YOU AND ESPOIR PMU TO BE RESOLVED BY INDIVIDUAL ARBITRATION. BY ACCESSING OR USING THE ESPOIR PMU SERVICES, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU (1) ARE 18 YEARS OF AGE OR OLDER, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE, DO NOT ACCESS AND/OR USE THE ESPOIR PMU SERVICES. PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
IN PARTICULAR, PROFESSIONALS SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE MUNICIPALITIES, CITIES, COUNTIES, STATES AND COUNTRIES BEFORE PROVIDING SERVICES. SOME STATES HAVE LAWS THAT REGULATE COSMETOLOGY AND COSMETOLOGY-RELATED SERVICES, IN ADDITION TO PAYMENT AND PAYMENT PROCESSING COLLECTIONS PRACTICES. IN MANY STATES, BEAUTY SERVICES PROVIDERS MUST BE LICENSED BEFORE THEY ARE ABLE TO COMMERCIALLY PROVIDE BEAUTY SERVICES. PENALTIES MAY INCLUDE FINES OR OTHER ENFORCEMENT.
1. CHANGES TO TERMS OF SERVICE
We reserve the right, in our sole discretion, to change, modify, add, or remove portions of the Terms of Service at any time. Your use of the Espoir PMU Services after we have updated these Terms of Service constitutes your acceptance of the updated Terms of Service. We will provide you with notice of any material changes to these Terms of Service by updating the “Last Updated” date. We encourage you to review the Terms of Service periodically.
2. PRIVACY POLICY
Our Privacy Policy describes our practices concerning personal information that you provide or that we may obtain in connection with the Espoir PMU Services.
3. PAYMENTS POLICY
Our Payments Policy describes our practices regarding payments, disbursements, refunds and other matters related to financial transactions that are conducted using the Espoir PMU Services. By accepting these Terms of Service or by using the Espoir PMU Services, you agree to be bound by the terms of our Payments Policy.
4. REFERRAL PROGRAM POLICY
Our Referral Program Policy describes the terms and conditions governing Espoir PMU’s Referral Program. By accepting these Terms of Service or by participating in the Espoir PMU Referral Program, you agree to be bound by the terms of our Referral Program Policy.
5. ESPOIR PMU ACCOUNT
Your Espoir PMU account (“Account”) gives you access to the Espoir PMU Services that we may establish and maintain from time to time in our sole discretion. You confirm upon creating an Account that you are 18 years of age or older and either a legal resident of the United States, a United States citizen or a business entity authorized to do business by the states in which you operate. You may only use the Espoir PMU Services and your
Account for business purposes in the fifty United States of America, its territories, and the District of Columbia.
When creating your Account and/or using the Espoir PMU Services, you must provide accurate, complete, and appropriate information. You acknowledge and agree that you will not intentionally omit and/or misrepresent any facts or material information and that if there are any such occurrences of knowingly omitted and/or misrepresented facts or information, you will promptly rectify them. You consent that Espoir PMU has the right to verify any such information submitted by you. Espoir PMU has the right to suspend or terminate any User that provides incomplete, inaccurate, or untrue information.
You understand and agree that you are solely responsible for compliance with any and all applicable laws, rules, and regulations that may apply to your use of the Espoir PMU Services and your Espoir PMU Account, including any and all products and services you may provide or make available through Espoir PMU. You additionally represent and warrant that you are, or if you are a salon, merchant, or other business entity, that all of your employees, independent contractors, or agents who are providing services to Clients each are, licensed professionals in full compliance with the laws and regulations in your particular state, and that all business information provided to describe you or them is correct. In addition, you certify that you are duly licensed to provide services to clients “in-home” or outside of your place of business should such services be advertised as such.
You are solely responsible for the activity that occurs on your Account, and you are solely responsible for keeping your Account password secure. Therefore, we suggest using safe internet practices such as using a strong password, not sharing your Account login information with others, and only logging in on your own personal devices. You must notify Espoir PMU immediately by email at support@espoirpmu.com of any unauthorized use of your Account. Additionally, you may never use another User’s account without permission.
If you are an Account Owner, you will own all data associated with the Account that is used by you and the other Professionals who are provisioned to access your Account. If you are a Professional using the Espoir PMU Services under the Account of an Account Owner, you acknowledge and agree that all Account data will be solely and exclusively owned by the Account Owner and not you. For the avoidance of doubt, the Account Owner, and not any other Professional provisioned to use such Account, will have the sole right to direct the transfer, use, deletion, export, and other processing of the data associated with such Account.
You acknowledge that Espoir PMU may continually develop additional features, functionality, and capabilities and that Espoir PMU reserves the right to modify the Espoir PMU Services at any time in its sole discretion. Some new features, functionality, or capabilities may be subject to additional fees as determined by Espoir PMU.
By using the Espoir PMU Services, you agree to these terms and acknowledge the responsibilities and policies detailed herein. Espoir PMU is committed to supporting your business and enhancing the client experience, ensuring that every interaction through our platform is smooth, professional, and in compliance with the highest industry standards.
6. ESPOIR PMU PROGRAMS
Espoir PMU may run certain promotions, programs, opportunities, sweepstakes, contests, and giveaways (“Espoir PMU Programs”). Espoir PMU Programs will be subject to these Terms of Service and any additional terms and conditions applicable to the Espoir PMU Program that have been presented to you. Espoir PMU reserves the right to, at any time and in its sole discretion, modify, change, add to, take away from, supplement, or terminate any of these Espoir PMU Programs. This includes, but is not limited to, changing the name, offers, fees, and/or eligibility requirements for participation in any Espoir PMU Program. Further, Espoir PMU retains sole discretion to determine whether the requirements of the Espoir PMU Program have been met. Espoir PMU will seek to notify you of any material changes to the Espoir PMU Programs but will not be liable for any failure to do so.
7. RESTRICTIONS
Your Account may not be used to engage in or promote any fraudulent or illegal activity, to harass anyone or send offensive content, or to infringe on any third-party right. Specifically, the Espoir PMU Services may not be used for or in connection with any of the following:
– Illegal products, services, or actions: illegal drugs, substances designed to mimic illegal drugs, and equipment designed for making or using drugs; fake references or ID-providing services; any business or organization that engages in, encourages, promotes, or celebrates unlawful violence or physical harm to persons or property; any other products, services, or actions that are in violation of law in the jurisdictions where your business is located or targeted to.
– Products, services, or actions that infringe intellectual property rights: sales or distribution of any other licensed materials without appropriate authorization; counterfeit goods; illegally imported or exported products; unauthorized sale of brand name or designer products or services; any other products, services, or actions that directly infringe or facilitate infringement upon the trademark, patent, copyright, trade secrets, proprietary, or privacy rights of any third party.
– Products, services, or actions that Espoir PMU considers unfair, deceptive, or predatory towards consumers.
– Adult content and services: pornography and other mature audience content (including literature, imagery, and other media) depicting nudity or explicit sexual acts; adult services including prostitution, escorts, pay-per-view, sexual massages, and adult live chat features; adult video stores; gentleman’s clubs, topless bars, and strip clubs.
– Marijuana: cannabis products; cannabis dispensaries and related businesses; products containing any amount of CBD/THC.
– Misuse of Espoir PMU Services: use of Espoir PMU Services with false identity or providing Espoir PMU with false, inaccurate, or misleading information; processing where there is no bona fide good or service sold, or donation accepted; card testing; evasion of card network chargeback monitoring programs; sharing cardholder information with another merchant for payment cross-sell products or services; use of Espoir PMU intellectual property without prior written consent from Espoir PMU; use of the Espoir PMU name or logo including use of Espoir PMU trade or service marks inconsistent with these Terms of Service, or in a manner that otherwise harms Espoir PMU or the Espoir PMU brand; any action that implies an untrue endorsement by or affiliation with Espoir PMU.
Espoir PMU reserves the right to remove or reclaim any Accounts, services and products you offer, or your content that is in violation of the foregoing restrictions, which shall be determined in Espoir PMU’s sole discretion.
8. FEES AND PAYMENTS
Fees for the Subscription (“Subscription Fees”) and fees applicable to each transaction with Clients that you process using the Espoir PMU Services (“Payment Processing Fees”) are set forth online (on our Site, in the App, or otherwise in your Account) and/or in a separate Subscription agreement entered into between you and Espoir PMU. Subscription Fees and Payment Processing Fees are collectively referred to herein as “Fees.” You agree to: (i) pay Espoir PMU the Subscription Fees and any other applicable fees for the Services, and (ii) allow Espoir PMU to retain the applicable Payment Processing Fees. Unless otherwise stated, Subscription Fees will be collected and must be paid for in advance of each billing period. All Fees paid to Espoir PMU are non-refundable and non-transferable, except as explicitly provided for in these Terms of Service.
By providing your credit card information or information about another payment method accepted by Espoir PMU (“Payment Method”) for the Espoir PMU Services, you agree that Espoir PMU is authorized to charge the Payment Method for all applicable Subscription Fees when due and any other charges you may incur in connection with your use of the Espoir PMU Services. Further, you authorize Espoir PMU to confirm that the Payment Method is in good standing with a financial
institution for the term of your use of the Espoir PMU Services. You further authorize Espoir PMU to obtain credit reports or run other background inquiries to assess a Professional’s eligibility to continue using the Espoir PMU Services. All balances, fees, charges, and payments collected or paid in connection with the Espoir PMU Services are denominated in USD. You are responsible for paying and remitting to the applicable tax authority any sales, use, or other similar taxes (if applicable, including VAT) applicable to (i) your purchase of the Espoir PMU Services, and (ii) for the services provided to Clients.
Reserves
Espoir PMU is not a bank or a money transmitter. Espoir PMU may, in our sole discretion, hold reserves for all or a portion of the charges processed by us. In certain circumstances, we may require you to place funds in reserve or to impose conditions on the release of funds (defined as a “Reserve”). We reserve the right to impose a Reserve on a Professional’s Account if, for example, we determine that the risk of loss to Espoir PMU or otherwise associated with your Account is higher than reasonably normal. This may include, by way of example and not limitation, if your activities increase the risk of loss to Espoir PMU, you have violated these Terms of Service, or your Account has an elevated number of disputes. If we impose a Reserve on your Account, we will establish the terms of the Reserve and provide you with notice of the amount, timing, and conditions upon which the funds in the Reserve will be released to you. Espoir PMU reserves the right to change or condition the terms of the Reserve based on our continuous assessment of the risk associated with your Espoir PMU Account.
Billing Cycle
Your Subscription to the Espoir PMU Services commences on the date that you sign up for a Subscription or on the date following the end of your free trial period. Unless otherwise stated at the time of sign-up, each Subscription runs on a one-month cycle (“Subscription Period”) and will automatically renew monthly until you cancel your Subscription or delete your Account by following the appropriate procedures within the Espoir PMU Services or notifying support@espoirpmu.com, unless we have earlier terminated your Account. You will be billed on the first date of your Subscription (after your free trial period, if applicable), and each monthly anniversary thereafter. For example, if your Subscription begins on April 29th, it will renew on May 29th, June 29th, and so on. If your Subscription begins on a date that is not present in every billing cycle (e.g., the 31st), you will be billed on the last day of every month. Espoir PMU may change the timing of our billing, and we reserve the right to modify the schedule at which you will be billed. The amount billed to you each month may vary due to promotional offers and/or changing your Subscription plan, and you acknowledge these variations and authorize Espoir PMU to bill you as necessary.
Changes to Fees
Espoir PMU reserves the right to adjust the Fees at any time and for any reason upon fourteen (14) days prior notice. Unless otherwise stated, any change to the Fees will be reflected on the next billing cycle after the change takes effect. To continue to use the Espoir PMU Services, you must agree to any change in Fees. If you do not agree to any change in Fees, you must either cancel your Subscription or request Account deletion by following the appropriate procedures within the Espoir PMU Services or notifying support@espoirpmu.com.
Trials
Espoir PMU may offer trial memberships for varying lengths which may include free or discounted access to the Espoir PMU Services during such trial periods. Espoir PMU reserves the right to end the availability of trial memberships at any time and for any reason. After the trial period, you acknowledge that your membership will automatically convert to a regular monthly Subscription for the then-applicable Fees unless canceled by written notice as set forth below prior to the end of your trial period.
Subscription Cancellation or Account Deletion
You may cancel your Subscription or delete your Account at any time by following the appropriate procedures within the Espoir PMU Services or notifying support@espoirpmu.com. Cancellation of your Subscription means that you will no longer have access to your Account or your Account data, and we will cease billing you on your next billing cycle. If you cancel your subscription, you may reinstate your Account by contacting support@espoirpmu.com. Deletion of your Account means that we will delete all of your Account data, except as required by applicable law, and we will cease billing you on your next billing cycle. You may not reinstate your Account after an Account deletion request as we will no longer have access to your Account data.
You must cancel your Subscription or delete your Account prior to your next billing cycle to avoid charges for the following billing cycle. If you do not cancel your Subscription or delete your Account prior to your next billing cycle, then you will be automatically charged for the subsequent month. All Subscription Fees are non-refundable. You acknowledge that you are ineligible for a pro-rated refund of any amount of the Subscription Fees paid for the then-current monthly subscription cycle at which you request cancellation of your Subscription or deletion of your Account. For any questions related to your individual billing cycle, please log onto your Account to view your billing cycle information or contact us at support@espoirpmu.com.
9. PROPRIETARY RIGHTS
Except for any User Content (as defined in Section 11 below), as between you and us, we or our licensors, as applicable, own, solely and exclusively, all rights, title, and interest in and to the Espoir PMU Services, all the content (including, without limitation, text, photographs, graphics, audio, visual, and audiovisual content), code, data and materials thereon, the look and feel, design and organization of the Espoir PMU Services, and the compilation of the content, code, data, and materials on the Espoir PMU Services, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights, and other intellectual property and proprietary rights therein. Your use of the Espoir PMU Services does not grant to you ownership of any content, code, data, or materials you may access on or through the Espoir PMU Services, nor does it transfer to you or any third party any rights, title, or interest in or to any Espoir PMU or Espoir PMU’s licensors intellectual property rights.
10. LIMITED LICENSE TO USE THE ESPOIR PMU SERVICES
Subject to these Terms of Service, Espoir PMU grants you a revocable, non-transferable, non-sublicensable, non-exclusive license to use the Espoir PMU Services, including installation and use of an object code copy of the App on mobile devices owned or leased solely by you, in accordance with these Terms of Service. The rights granted to you in these Terms of Service are subject to the following restrictions: you shall not (i) sublicense, sell, rent, lease (including to provide time sharing, service bureau or similar services for any third party), loan, resell, transfer, assign, or distribute the Espoir PMU Services; (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Espoir PMU Services; (iii) access the Espoir PMU Services in order to build a similar or competitive service; (iv) imitate any part of the Espoir PMU Services, including but not limited to the text, photographs, graphics, audio, visual, settings, controls, functionality, code, data, mechanisms, design, interactions, or systems in place that the Espoir PMU Services provide; (v) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Espoir PMU Services that (a) prevent or restrict the use or copying of any content accessible through the Espoir PMU Services or (b) enforce limitations on the use of the Espoir PMU Services; (vi) delete the trademark, copyright, and other proprietary rights notices on the Espoir PMU Services; or (vii) copy, reproduce, distribute, republish, download, display, post, or transmit the Espoir PMU Services in any form or by any means, except as expressly stated herein.
The foregoing limited license grant is not a sale of the Espoir PMU Services or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the Espoir PMU Services. Any future release, update, or other addition to functionality of the Espoir PMU Services shall be subject to these Terms of Service.
You agree that any use of the Espoir PMU Services other than on your own behalf as a Professional shall be subject to immediate termination of your Account. If you breach any of the foregoing provisions or have been found to be complicit in enabling another to do so, Espoir PMU is entitled to seek monetary damages, injunctive relief, and other remedies from you.
11. LICENSE TO USER CONTENT
You grant Espoir PMU a non-exclusive, transferable, irrevocable, perpetual, sub-licensable, royalty-free, worldwide license to use, without any compensation to you, any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, links and other content or materials that you display, post, submit, or make available on or through (i) the Espoir PMU Services (including on the website(s) you create) or (ii) any online or public platform, including on any social media platform, that either tags Espoir PMU or otherwise identifies Espoir PMU (all such content to be collectively referred to as “User Content”), for our lawful business purposes, including without limitation (a) to provide the Espoir PMU Services; (b) in connection with the commercial or sponsored content displayed, promoted, or enhanced by us or our third-party partners, including in paid advertisements and on our websites or landing pages; and (c) in connection with Espoir PMU’s social media accounts, including the reposting of your social media posts that tag or otherwise identify Espoir PMU.
You represent and warrant that you either own or have permission to use all User Content (including your personal information and the personal information of others) and that such content does not infringe any third-party intellectual property rights. You further represent and warrant that you will not provide, upload, or in any way transmit any protected health information (PHI) to the Espoir PMU Services. You further agree that you will not upload, transmit, or otherwise provide sensitive personal information or credit card information in the Espoir PMU Services, in the “notes” section or otherwise. We may, but have no obligation to, monitor, edit or remove User Content from the Espoir PMU Services or controlled websites or social media accounts that we determine violates any party’s intellectual property rights or these Terms of Service. You are solely responsible for any User Content you display, post, or submit and its legality and accuracy. We take no responsibility and assume no liability for any User Content posted by you or any third-party.
In addition, if you send certain specific submissions in response to a request from us (for example surveys or contest entries) or send creative ideas, suggestions, feedback, proposals, plans, or other materials, whether online, by email, by postal mail, via social media, or otherwise (collectively, “Comments”), you acknowledge and grant us an irrevocable, perpetual, royalty-free, transferable, sub-licensable right and license to use, distribute, and exploit such Comments and agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation to (i) maintain any Comments in confidence; (ii) pay compensation for any Comments; or (iii) respond to any Comments.
You may be exposed to information about Espoir PMU or its products or services and ideas that may not have been disclosed to the public (collectively, the “Confidential Information”). You shall maintain the confidentiality of all Confidential Information disclosed to you, if any, in connection with the Services, and you shall hold Confidential Information in strict confidence. You shall refrain from disclosing or using our Confidential Information for any purpose other than as strictly required to use the Services and for purposes of providing confidential feedback to Espoir PMU.
12. COMMUNICATIONS
By using the Espoir PMU Services or where express consent as required by applicable law has been given, you expressly consent and agree to accept and receive communications from us, including via email, text message (SMS), calls, and push notifications to the cellular telephone number you provided to us. These Terms and the Espoir PMU SMS Terms, govern the provision, receipt, and delivery of text messages by or on behalf of Espoir PMU. By consenting to being contacted by Espoir PMU, you understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Espoir PMU, including but not limited to: operational and transactional communications concerning your Account, use of the Espoir PMU Services, and appointments; updates concerning new and existing features on the Site or App; promotional communications, including communications about special events, contests, sweepstakes, offers or surveys run by us or our third-party partners, and news concerning Espoir PMU. Standard rates and text messaging charges may apply. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the Espoir PMU Services. You may opt out of receiving promotional or marketing texts or calls from Espoir PMU at any time by contacting us or following the instructions contained in the message. You may not opt out of services-specific communications if you wish to continue accessing the Espoir PMU Services.
In addition, if you provide us with the names and contact information of your Clients, including emails and phone numbers provided to Espoir PMU by you or maintained in your Account or otherwise provided through your website hosted by Espoir PMU, and instruct us to email, text, or call your Clients on your behalf, you represent and warrant that you have provided any required notices to and obtained any required consents, permissions, or opt-ins from such Clients.
You represent and warrant to us that you shall comply with all applicable laws and regulations in connection with your marketing and promotional activities using the Espoir PMU Services, including without limitation in connection with your sending of email or SMS text messages to your Clients, and shall ensure that all legally required opt-in consents and opt-out permissions are in use by you in your use of the Espoir PMU Services. You represent and warrant that you will not use your Account to send emails or text messages in violation of these Terms of Service, CAN-SPAM, TCPA or other applicable laws. You further agree to not use the Espoir PMU email and text message capabilities to send spam or send any communications to lists containing personal information that you don’t have permission to use.
13. REPRESENTATIONS AND WARRANTIES
You represent and warrant that you are 18 years of age or older and have the legal right and capacity to enter into these Terms of Service in your jurisdiction. You represent and warrant that you will use the Espoir PMU Services solely in compliance with all applicable laws and regulations, including without limitation the licensing requirements in your jurisdiction for providing cosmetology services or other regulated or licensed products or services, and surcharge and credit card network requirements in your jurisdiction.
You are solely responsible for your conduct and for any User Content that you display, post, submit, or make available on or through the Espoir PMU Services. You represent and warrant that: (i) you own or have all rights, authorizations, or consents required to use all User Content displayed, posted or submitted by you on or through the Espoir PMU Services as well as all content (such as client lists) that you request Espoir PMU transfer to your Account, or otherwise have the right to grant the rights and licenses set forth in these Terms of Service; (ii) the display, posting, submission and use of your User Content on or through the Espoir PMU Services and any request by you to transfer any content to your Account does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you display, post or submit on or through the Espoir PMU Services or content you request Espoir PMU transfer to your Account.
Without limiting any of its remedies available under law, Espoir PMU will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material submitted through your Account, and will respond, appropriately, following the guidelines of the Online Copyright Infringement Liability Limitation Act and other applicable intellectual property laws. Espoir PMU reserves the right to remove, hide, change, or reclaim any Accounts, services and products you offer, or your content that is in violation of the foregoing, which shall be determined in Espoir PMU’s sole discretion.
14. APP STORE PROVIDER TERMS
To use any downloadable apps developed by us and provided to you directly or on our behalf, including all iOS apps bearing the “Espoir PMU” logo and the Espoir PMU Android app, you must have a mobile device that is compatible with it. We do not warrant that the App will be compatible with your mobile device. You acknowledge that we may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device, but that we have no obligation to do so. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such upgrades. Standard carrier data charges may apply to your use of the App.
Apple Inc., Google, Inc., or Microsoft Corporation will be a third-party beneficiary to these Terms of Service if you access the Espoir PMU Services using applications developed for Apple iOS, Android, or Microsoft Windows-powered mobile devices, respectively. These third-party beneficiaries are not parties to this agreement and are not responsible for the provision or support of the Espoir PMU Services in any manner. Your access to the Espoir PMU Services using mobile devices is subject to terms set forth in the applicable third-party beneficiary’s terms of service. The additional terms and conditions applicable to you, as an end user of our App, available here, apply with respect to any App that we provide to you that is designed for use on an Apple iOS-powered mobile device.
15. THIRD-PARTY APPLICATIONS, SERVICES, AND LINKS
We utilize certain third-party applications and services to power certain portions of the Espoir PMU Services or to permit you to access the Espoir PMU Services. Espoir PMU does not sponsor or endorse those third-party applications and services and has no obligation to support or maintain such third-party applications and services, and further Espoir PMU expressly disclaims any representations and warranties, with respect to such third-party applications and services. Espoir PMU does not monitor such third-party applications and services, nor does it have any control or input. You acknowledge and agree that we provide access to such third-party applications and services on an “as is” and “as available” basis without any warranties, representations, or conditions of any kind and without endorsement. We shall have no liability whatsoever arising from or relating to your use of third-party applications and services.
Your use of the Espoir PMU Services is conditioned upon your acceptance and compliance with the terms and conditions applicable to such third-party applications and services. Your use of such third-party applications and services is at your own discretion and you shall ensure that you are familiar with and approve the terms on which such applications and services are provided, including without limitation:
Certain content available on the Espoir PMU Services may include materials from third parties, including third-party links that may direct you to third-party websites that are not affiliated with Espoir PMU. You acknowledge that Espoir PMU is not responsible for examining or evaluating the content or accuracy of such third-party websites and Espoir PMU does not provide any warranties or have any liability for any third-party websites or materials. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
16. GIFT CARDS
If you use the Espoir PMU Services to offer and sell gift cards to your Clients, you (and not Espoir PMU) are the issuer and administrator of your gift cards. You are solely responsible for compliance with federal, state, and local laws that apply to your gift cards, including but not limited to notice and disclosure requirements, expiration dates and fees, refunds, cash back, unclaimed property or escheat requirements (such as tracking, reporting, and remittance of unclaimed property balances in all states), and customer service for your Clients and holders of gift cards.
Gift cards sold by you are gift cards that are only redeemable from you for your services and goods. Espoir PMU does not assess a fee, or impose any limitations, on the redemption of a gift card to purchase services or goods from you. Espoir PMU is not responsible for any lost or stolen gift cards. All gift cards and the funds associated with gift cards are your sole property. Any liability for the use or misuse of your gift cards, and any third-party claims arising from or relating to your gift cards, are your sole responsibility.
17. GENERATED OUTPUT
(a) Certain features of the Services use artificial intelligence tools and other technology (the “Generative Tools”) to generate text, audio, video, and other content (“Outputs”) in response to prompts and other inputs you submit to the Services (“Inputs”). Both Inputs and Outputs are considered User Content under these Terms of Service, and as between you and Espoir PMU, you own all right, title, and interest in and to any Inputs and Outputs, to the extent protectable under applicable law. The Generative Tools may include artificial intelligence and other tools and technologies provided by third parties, and you acknowledge that your use of the Generative Tools may involve access to your Inputs and Outputs by Espoir PMU and/or such third parties, and that such access may be pursuant to agreements you enter into with those third parties, rather than or in addition to these Terms of Service. You understand that due to the nature of the Generative Tools, Outputs you generate may not be unique, and it is possible that the Generative Tools may generate the same or similar Outputs for other users if the Inputs are similar. You acknowledge that the use of such Generative Tools may affect your ability to obtain or enforce any intellectual property rights in or to the Outputs.
(b) Although we are constantly striving to improve the Services and the quality and accuracy of Outputs, you acknowledge that artificial intelligence and machine learning technologies are rapidly evolving and may produce Outputs that are inaccurate, unreliable, inappropriate, infringing, or otherwise unsuitable or that do not meet your expectations.
(c) You agree not to use the Generative Tools or the resulting Outputs in a manner that may infringe upon or violate the rights of any third party or violate any applicable laws, rules, or regulations, and you acknowledge and agree that (1) you are solely responsible for vetting and evaluating the accuracy, appropriateness, legality, and suitability for your use of any Outputs before using, including evaluating whether such use will infringe upon or violate the rights of others; and (2) you assume all risk associated with your use of the Generative Tools and its resulting Outputs and that Espoir PMU will have no liability for such use.
(d) You also acknowledge and agree that we and any third parties who provide any artificial intelligence technologies used to provide the Generative Tools may access and use your Inputs, Outputs and other User Content in order to train, improve, and develop such technologies and the Services and for other research and development purposes.
18. AGE REQUIREMENTS
We do not knowingly permit children under the age of 18 to maintain Accounts without parental consent. Espoir PMU does not knowingly collect or solicit personal information about children under 18, except with their parent’s consent.
Additionally, the Espoir PMU Services are not intended for use by minors under the age of 13. We do not collect personally identifiable information from any person we know is a child under the age of 13. Should we be alerted that we have inadvertently collected personally identifiable information from a child under the age of 13, we will take steps to immediately delete such information.
19. TERMINATION
We may terminate, change, suspend or discontinue any aspect of the Espoir PMU Services (including, without limitation, content, features, or hours of availability), at any time and for any reason. We also reserve the right to transfer our business and the Espoir PMU Services to a third party. We may restrict, suspend or terminate your Account or your access to the Espoir PMU Services if we believe you are in breach of these Terms of Service or applicable law, or for any other reason without notice or liability.
If we have terminated your Account or have otherwise canceled your access to the Espoir PMU Services, except where cancellation of your Subscription or deletion of your Account is initiated solely by you, you may not return to the Espoir PMU Services for any reason or in any manner without Espoir PMU’s prior written consent, including by using the Espoir PMU Services under a new username or identity. In the event that you do return, or attempt to return, to the Espoir PMU Services after we have terminated your Account, you will be deemed to have breached these Terms of Service, and we reserve the rights to obtain reimbursement from you for any costs and expenses incurred to enforce these Terms of Service and otherwise to pursue all rights and remedies available at law or in equity with respect to such breach.
If your Account is terminated by Espoir PMU or deleted by you, or if you cancel your Subscription, note that the following will occur: any pending transactions will be canceled, any funds that are being held for you in custody at the time of the termination, deletion, or cancellation, less any Fees, will be paid out according to your payout schedule, assuming all payout-related requirements have been fulfilled. Your funds may be held if there is a pending investigation at the time of your Account termination or deletion or Subscription cancellation. If the investigation yields that you are entitled to some or all of the funds in dispute, we will promptly release those funds to you.
Additionally, if your Account is terminated by Espoir PMU or deleted by you, or if you cancel your Subscription, for any reason or for no reason at all, you agree that (i) you will be bound by these Terms of Service to the extent such obligations survive termination or deletion of your Account or cancellation of your Subscription; (ii) you will immediately stop using the Espoir PMU Services; (iii) any licenses to any of the Espoir PMU Services granted to you under these Terms of Service shall end; (iv) your access to third-party platforms via the Espoir PMU Services will be canceled; and (v) Espoir PMU may retain all Account data (a) as required by law and/or (b) in its ordinary course of business as maintained in its data retention and backup systems; provided that Espoir PMU may only use Account data pursuant to its Privacy Policy and in accordance with applicable laws. Notwithstanding the foregoing, if your Account is deleted by you in accordance with these Terms of Service, then Espoir PMU will process deletion of your Account data, except for any Account data that we are legally permitted to retain, such as tax documents. Espoir PMU is not liable for any compensation, reimbursement or damages in connection with the termination or deletion of your Account, the cancellation of your Subscription, or any termination of access to a third-party platform via the Espoir PMU Services. Termination or deletion of your Account or cancellation of your Subscription does not relieve you of any obligations to pay any Fees, debts or costs accrued in connection with use of the Espoir PMU Services.
20. INDEMNIFICATION
By using the Espoir PMU Services you acknowledge and agree that, in the event that it becomes necessary or advisable for us to defend ourselves, in a court of law or otherwise, we may rely on your representations and warranties contained herein. You agree to defend, indemnify, and hold Espoir PMU, its affiliates and representatives and each of their respective directors, officers, employees, and agents harmless from any and all claims, liabilities, costs, and expenses, including reasonable attorneys’ fees and other costs arising in any way from your use of the Espoir PMU Services, your violation of the law, infringement or misappropriation of third-party intellectual property rights, or your breach of these Terms of Service. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim and to reimburse us for the reasonable costs and expenses thereof.
21. DISCLAIMER OF WARRANTIES
THE ESPOIR PMU SERVICES, INCLUDING, WITHOUT LIMITATION, ALL FEATURES, CONTENT, FUNCTIONS AND MATERIALS PROVIDED THROUGH THE SITE AND APP, ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, DISPLAYABILITY, ACCURACY, USEFULNESS, CORRECTNESS, PRECISION, THOROUGHNESS, COMPLETENESS OF CONTENT OR INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED.
WE DO NOT WARRANT THAT THE ESPOIR PMU SERVICES, CONTENT, FUNCTIONS OR MATERIALS PROVIDED THROUGH THE SITE OR APP WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. ESPOIR PMU MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SUITABILITY, RELIABILITY, TIMING, DURABILITY, LEGALITY, OR ANY OTHER ASPECT OF THE SERVICES OFFERED OR PROVIDED BY PROFESSIONALS OR REQUESTED BY CLIENTS THROUGH USE OF THE ESPOIR PMU SERVICES WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS OR ABOUT THE ACCREDITATION, REGISTRATION OR LICENSE OF ANY PROFESSIONAL. WE MAKE NO WARRANTY THAT THE ESPOIR PMU SERVICES WILL MEET A PROFESSIONAL’S REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE ESPOIR PMU SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. ESPOIR PMU ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR EQUIPMENT ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING ON THE SITE OR APP OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, INFORMATION, TEXT, IMAGES, OR OTHER CONTENT FROM THE SITE OR APP.
WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THE SITE OR APP AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE WILL NOT BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE OR APP. UNDER NO CIRCUMSTANCES DOES YOUR USE OF THE ESPOIR PMU SERVICES FORM ANY RELATIONSHIP (OTHER THAN THE CONTRACTUAL RELATIONSHIP CREATED BY THESE TERMS OF SERVICE), WHETHER IMPLIED OR EXPRESS, WITH ESPOIR PMU. ESPOIR PMU HEREBY DISCLAIMS ANY SUCH RELATIONSHIP AND ANY LIABILITY ARISING AS A RESULT OF YOUR USE OF ANY CONTENT CONTAINED ON THE SITE OR APP.
IT IS POSSIBLE FOR OTHER USERS OF THE ESPOIR PMU SERVICES TO OBTAIN PERSONAL INFORMATION ABOUT YOU DUE TO YOUR USE OF THE ESPOIR PMU SERVICES, AND THAT THE RECIPIENT MAY USE SUCH INFORMATION TO HARASS OR INJURE YOU. WE ARE NOT RESPONSIBLE FOR THE USE BY OTHER USERS OF THE ESPOIR PMU SERVICES OF ANY PERSONAL INFORMATION THAT YOU DISCLOSE THROUGH THE ESPOIR PMU SERVICES.
22. LIMITATION OF LIABILITY
IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL ESPOIR PMU, ANY OF ITS AFFILIATES OR REPRESENTATIVES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE ESPOIR PMU SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE OR APP. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OF SERVICE OR YOUR USE OF THE ESPOIR PMU SERVICES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO ESPOIR PMU FOR YOUR USE OF THE ESPOIR PMU SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IF YOU ARE DISSATISFIED WITH THE ESPOIR PMU SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE ESPOIR PMU SERVICES.
ESPOIR PMU EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN PROFESSIONALS AND CLIENTS RELATED TO OR ARISING FROM USE OF THE ESPOIR PMU SERVICES. BECAUSE ESPOIR PMU IS NOT INVOLVED IN THE PROVISION OF ANY SERVICES BY THE PROFESSIONAL, YOU HEREBY RELEASE AND FOREVER DISCHARGE THE PROTECTED ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER PROFESSIONAL OR CLIENT, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF ESPOIR PMU SERVICES OR OTHERWISE.
YOU ACKNOWLEDGE AND AGREE THAT ESPOIR PMU HAS SET ITS FEES AND ENTERED INTO THIS TERMS OF SERVICE IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS) AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
23. ARBITRATION; NO CLASS ACTION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and Espoir PMU arising under or related in any way to these Terms of Service, including your use of the Espoir PMU Services, must be resolved through binding arbitration as described in this Section. This agreement to arbitrate is intended to be interpreted broadly. YOU AGREE THAT BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND ESPOIR PMU ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND ESPOIR PMU AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. The arbitration will be governed by the then applicable Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this Section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Espoir PMU must abide by the following rules: (i) the arbitration shall be conducted solely based on written submissions; and (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in New York County, New York. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New York County, New York. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in New York County, New York. You agree to submit to the personal and exclusive jurisdiction of such courts.
24. ENTIRE AGREEMENT
These Terms of Service, which incorporate the Privacy Policy, Payments Policy, Referral Program Policy, and SMS Terms constitute the entire agreement between you and us regarding the use of the Espoir PMU Services.
25. MISCELLANEOUS
The Terms of Service, and the relationship between you and us, shall be governed by the laws of the State of New York, United States of America, without regard to conflict of law provisions. Our failure to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Service will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Espoir PMU is that of an independent contractor, and neither party is an agent or partner of the other. These Terms of Service, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Espoir PMU’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. These Terms of Service may be assigned, subcontracted, delegated or otherwise transferred by Espoir PMU in its sole discretion. These Terms of Service shall be binding upon any permitted assignees.
26. COPYRIGHT INFRINGEMENT CLAIMS
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Espoir PMU Services infringe your copyright, you (or your agent) may send to Espoir PMU a written notice by mail or e-mail, requesting that Espoir PMU remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Espoir PMU a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.
See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to the Designated Agent as follows:
If you have questions about these Terms of Service, please email us at support@Espoir PMU.com.
