Effective Date: September 28, 2020
Please Read Carefully Before Using This Service.
We expressly reserve the right to modify these Terms at any time in our sole discretion, and without prior notice to you, by including such modification in these Terms, along with a notice of the effective date of such modified Terms. It is your sole responsibility to check our website periodically for such modifications. Any continued use by you of the Service after the posting of such modified Terms shall be deemed to indicate your irrevocable agreement to such modified Terms. Accordingly, if at any time you do not agree to be subject to any modified Terms, you may no longer use the Service.
TABLE OF CONTENTS
- ACCOUNT REGISTRATION, ELIGIBILITY & RESTRICTIONS
- SERVICE CONTENT
- YOUR CONTENT; COMMENTS; FEEDBACK
- USE OF THE SERVICE
- FEES, SUSPENSION & TERMINATION
- LINKED WEBSITES
- LIMITATION OF LIABILITY
- INJUNCTIVE RELIEF
- APPLICABLE LAW & JURISDICTION
- LOCATION OF THE SERVICE
- GENERAL PROVISIONS
THESE TERMS ARE LEGALLY BINDING, AND YOUR USE OF THE SERVICE IS CONDITIONED UPON YOUR ACCEPTANCE, CONSENT, AND AGREEMENT TO THESE TERMS. BY CREATING AN ACCOUNT OR OTHERWISE USING THE SERVICE, YOU AFFIRMATIVELY CONFIRM THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE ACTUAL RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SERVICE. YOU MAY NOT ACCESS OR USE THE SERVICE, OR ACCEPT THE TERMS, IF YOU ARE NOT AT LEAST 18 YEARS OLD.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
3. ACCOUNT CREATION, ELIGIBILITY & RESTRICTIONS
3.1 Account Creation. In order to use certain features of the Service, you must register for an account (‘Account’) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit to the Company is truthful, current, accurate, and complete; and (b) you will maintain the accuracy of such information. The Company assumes no duty to verify such information. You may delete your Account at any time, for any reason, by following the instructions on the Service. The Company may suspend or terminate your Account in accordance with these Terms.
3.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify the Company of any actual or suspected unauthorized use of your Account or any other breach of security. We cannot and will not be liable for any loss or damage arising from your failure to comply with these Terms.
3.3 License. Subject to all of the terms and conditions of these Terms, the Company hereby grants to you the non-transferable, non-exclusive, non-sublicensable, and revocable limited license to access and use the Service solely for use relating to one or more rental properties that you or the entity that you represent own or manage (your ‘Rental Properties’) until such time as either you or the Company elects to terminate such right in accordance with these Terms. The Company specifically grants you a limited, non-exclusive, royalty free, non-transferable license to use guest communication content (‘Guest Communication Content‘) generated through the Guest Communication Portal available on the Service (the ‘Guest Communication Portal‘) to suggest related experiences and communicate about Rental Properties, bookings, and related topics with other users.
3.5 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: except as expressly stated herein, (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms. All copyright and other proprietary notices on the Service (or on any content displayed throughout the Service) must be retained on all copies thereof.
4. SERVICE CONTENT
4.1 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms. The Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
4.2 Our Content. Except as may be otherwise noted, the information, and materials (including, without limitation, HTML, text, audio, video, white papers, press releases, data sheets, product descriptions, software, FAQs, and other content) available on the Service (collectively, ‘Our Content’) are the copyrighted works of the Company and its licensors, and the Company and its licensors expressly retain all right, title, and interest in and to Our Content, including, without limitation, all intellectual property rights therein and thereto. Except as expressly permitted in these Terms, your use of Our Content may violate copyright and other applicable laws.
4.4 Limited Service Content License. The Company grants you the limited, revocable, non-transferable, non-exclusive, and non-sublicensable license to use Our Content and Third-Party Content (collectively, ‘Service Content’) by displaying the Service Content on your web-enabled device, and downloading and printing pages from the Service containing Service Content, under the condition that (i) such activity is solely in accordance with these Terms, (ii) you do not modify or prepare derivative works from the Service Content, (iii) you do not obscure, alter, or remove any notice of copyright set forth on any Service pages or Service Content, (iv) you do not otherwise reproduce, re-distribute, or publicly display any of the Service Content, and (v) you do not copy any Service Content to any other media or other storage format.
4.5 Trademarks. All trademarks, service marks, and logos included on the Service (except to the extent constituting Your Content as defined below, the ‘Marks’) are the property of the Company or third parties, and you may not use such Marks without the express, prior written consent of the Company, or the applicable third party.
4.6 Monitoring of Service Content and Use of Service. The Company reserves the right, but does not undertake the obligation, to monitor use of the Service, and to investigate and take appropriate legal action against any party that uses the Service in violation of these Terms or applicable law. The Company reserves the right to accept, reject, or modify any Service Content or Your Content (as defined below), but assumes no liability based on its acceptance, rejection, modification, or failure to modify any Service Content or Your Content.
4.7 Copyright Infringement. The Company respects the intellectual property of others and asks that users of our Service do the same. In connection with our Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. Â§ 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. Â§ 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Company is:
Address of Agent: 1824 Beacon Street, #2
As a condition of your right to use the Service, you agree to respect the intellectual property rights of others. You agree not to upload or post to the Service any copyrighted materials, trademarks, or other proprietary information belonging to any third party without the prior written consent of the applicable third party. You acknowledge that the Company may terminate your access to the Service if you infringe the copyright of third parties. THE COMPANY RESERVES ALL RIGHTS TO SEEK DAMAGES AND FEES ASSOCIATED WITH INFRINGEMENT AND OR FRAUD.
5. YOUR CONTENT; COMMENTS; FEEDBACK
5.1 User Content. User Content means any and all information and content that a user submits to, or uses with, the Service (e.g., content in the user’s profile or postings), including, without limitation, timestamp logs for your use of the Service and Guest Communication Content that you generate, as defined above. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy and Prohibited Conduct terms. You may not represent or imply to others that your User Content is in any way provided, sponsored, or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy and Prohibited Conduct terms. The Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. You alone are responsible for identifying, understanding, and complying with all laws, rules, and regulations that apply to your User Content and any Rental Properties you add to or otherwise manage on the Service.
5.2 Guest Communication Content. Through the Service, we may make available to you tools to create Guest Communication Content, including messaging systems to communicate directly with guests as a Rental Property account manager or with Rental Property managers as a guest account, of which any messages exchanged constitute Guest Communication Content. These tools may rely on data, information, or technology provided to us by third parties. Accordingly, we cannot be certain that such third-party information is accurate, complete, or reliable. In addition, the Guest Communication Content may merely make suggestions for Rental Property manager users to provide to guests of their Rental Properties or otherwise provide for unmonitored messaging between users. Users should use their own discretion in making Guest Communication Content available to other users or otherwise using any Guest Communication Content tools to communicate with users. Rental Propety manager users should notify guests when Guest Communication Content contains mere suggestions. To the extent that you make Guest Communication Content available to other users or otherwise use the tools associated with such Guest Communication Content, and without limiting any other provisions of these Terms, you specifically acknowledge and agree that:
YOU SHALL INDEMNIFY AND HOLD COMPANY (AND ITS OFFICERS, EMPLOYEES, AND AGENTS) HARMLESS, INCLUDING COSTS AND ATTORNEYS’ FEES, FROM ANY CLAIM OR DEMAND MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR EMBEDDING OR DISPLAYING GUEST COMMUNICATION CONTENT ON ANY WEBSITE, MOBILE APPLICATION, OR PRINTED MATERIALS, OR YOUR USE OF THE TOOLS ASSOCIATED WITH SUCH GUEST COMMUNICATION CONTENT;
THE GUEST COMMUNICATION CONTENT AND THE TOOLS ASSOCIATED WITH SUCH GUEST COMMUNICATION CONTENT ARE PROVIDED ‘AS IS’, ‘WITH ALL FAULTS’, AND ON AN ‘AS AVAILABLE’ BASIS; and
IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES ARISING OUT OF YOUR OR YOUR GUESTS’ RELIANCE ON GUEST COMMUNICATION CONTENT OR THE TOOLS ASSOCIATED WITH SUCH GUEST COMMUNICATION CONTENT.
5.3 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free, fully paid, worldwide license to reproduce, distribute, publicly display, perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Service. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.4 Feedback. If you provide Company with any feedback or suggestions regarding the Service (‘Feedback’), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
6. USE OF THE SERVICE
6.1 Acceptable Use Policy. You agree not to use the Service to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
6.2 Prohibited Conduct. In addition, you agree not to: (i) upload, transmit, or distribute to or through the Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Service unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Service to harvest, collect, gather, or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service, or violate the regulations, policies, or procedures of such networks; (v) attempt to gain unauthorized access to the Service (or to other computer systems or networks connected to or used together with the Service), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Service; or (vi) use software or automated agents or scripts to produce multiple accounts on the Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Service (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
6.2 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with these Terms, and/or reporting you to law enforcement authorities.
6.3 Export Control. You hereby represent and warrant that (i) you understand and acknowledge that some Service Content may be subject to export, re-export, and import restrictions under applicable law, (ii) you will not use the any Service Content in a manner that violates the U.S. Export Administration Act of 1979 and the regulations of the U.S. Department of Commerce, and (iii) you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods.
7. FEES, SUSPENSION & TERMINATION
7.1 Fees. We may charge you fees for access to portions of the Service or for the use of certain tools or services provided through Service. We will disclose to you any applicable fees before they become payable by you. You agree to pay all fees and charges, including applicable taxes and surcharges, incurred through your activity on or through the Service and/or through your account/profile at the rates in effect for the billing period in which such fees and charges are incurred (such fees, charges, taxes, and surcharges shall collectively be referred to as ‘Fees’). Unless otherwise specified on the Service, all Fees will be quoted and charged in U.S. dollars. We reserve the right to change the amount of, or basis for determining, any Fees, and to institute new Fees, effective upon publication of such revised pricing on the Service.
7.3 Vendor Referrals. The Guest Communication Platform may, from time to time, enable you to receive referral fees (‘Referral Fees’) for featuring third party vendors (‘Featured Vendors’) to your guests. The Referral Fees that you receive from Featured Vendors will be calculated as a percentage of sales of goods and services by Featured Vendors to your guests that we can confirm as originating through your guests’ use of the Guest Communication Platform. By using the Guest Communication Platform, and without limiting any other provisions of these Terms, you specifically acknowledge and agree that:
- The formula or formulas used to calculate Referral Fees may or may not be disclosed to you and are subject to change at any time, with or without notice, at our discretion;
- We make no guarantees regarding the amount of Referral Fees that you will receive by featuring vendors to your guests through the Guest Communication Platform, or that you will receive any Referral Fees at all;
- We will endeavor to track sales of goods and services by Featured Vendors to your guests originating through your guests’ use of the Guest Communication Platform using commercially reasonable efforts, but we cannot guarantee that we will be able to identify any sales of goods or services by Featured Vendors to your guests as originating through your guests’ use of the Guest Communication Platform;
- You will cooperate with all reasonable requests that we make of you to help us either the track the origination of Featured Vendor sales to your guests or complete the payment of Referral Fees to you; and
- We may receive payment from Featured Vendors based on sales of goods or services by Featured Vendors to your guests originating through your guests’ use of the Guest Communication Platform.
7.4 Suspension & Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Service. We may suspend or terminate your rights to use the Service (including your Account) at any time for any reason at our sole discretion, including for any use of the Service in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Service will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. The Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content.
7.5 Return of Fees. If we suspend or terminate your rights to use the Service (including your Account) for any use of the Service in violation of these Terms, you will not be entitled to the return of any Fees paid to Company. If we suspend or terminate your rights to use the Service (including your Account) for any other reason, we will refund any Fees paid in advance for periods following the suspension or termination of your rights to use the Service (including your Account). You will not be entitled to the return of any Fees paid to Company if you choose to suspend or terminate your use of the Service or your Account.
7.6 Modification of the Service. The Company reserves the right, at any time, to modify, suspend, or discontinue the Service (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Service or any part thereof.
7.7 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Service.
8. LINKED WEBSITES
The Guest Communication Content and associated tools may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, ‘Third-Party Links & Ads’). Such Third-Party Links & Ads are not under the control of the Company, and the Company is not responsible for any Third-Party Links & Ads. The Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When users click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices.
9. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ANY FEES THAT YOU HAVE PAID COMPANY FOR USE OF SERVICES OR TOOLS PROVIDED THROUGH THE (B) FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Service, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE SERVICE IS PROVIDED ON AN ‘AS-IS’ AND ‘AS AVAILABLE’ BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Service users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: ‘A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.’
13. INJUNCTIVE RELIEF
You acknowledge that any use of the Service contrary to these Terms, or any transfer, sublicensing, copying, or disclosure of technical information or materials related to the Service, may cause irreparable injury to the Company, its affiliates, and suppliers, and under such circumstances the Company, its affiliates, and suppliers will be entitled to equitable relief, without posting bond or other security, including but not limited to, preliminary and permanent injunctive relief.
Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
If your country of residence is the United States, this provision applies to all disputes with the Company. If your country of residence is outside of the United States, this provision applies to any action you bring against the Company in the United States. It affects how disputes with the Company are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver.
14.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
14.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (‘Notice’) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 1824 Beacon Street, #2, Brookline, Massachusetts 02445. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
14.3 Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (‘AAA‘), an established alternative dispute resolution provider (‘ADR Provider‘) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (‘Arbitration Rules‘) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
14.4 Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
14.5 Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
14.6 Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
14.7 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
14.8 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
14.9 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
14.10 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
14.11 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
14.12 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
14.13 Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
14.14 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
14.15 Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
14.16 Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Suffolk County, Massachusetts, for such purpose
15. APPLICABLE LAW & JURISDICTION
These Terms will be interpreted in accordance with the laws of the Commonwealth of Massachusetts and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in these Terms must be brought in state or federal court in Suffolk County, Massachusetts, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Suffolk County, Massachusetts.
16. LOCATION OF THE SERVICE
The Company operates or controls the operation of the Service from offices in the United States. In addition, the Service may be mirrored, and other websites operated or controlled by the Company may be located, at various locations within and outside of the United States. The Company makes no representation or warranty that all of the features of the Service will be available to you outside of the United States, or that they are permitted to be accessed outside of the United States. You acknowledge that you are solely responsible for any decision by you to use the Service from other locations, and that such use may be subject to, and that you are responsible for, compliance with applicable local laws.
17, GENERAL PROVISIONS
17.1 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties, and will be modified to the extent necessary to make such provision valid and enforceable to the maximum extent permitted by law.
17.2 Waiver. No waiver of rights by the Company may be implied from any actions or failures to enforce rights under these Terms. These Terms are intended to be and are solely for the benefit of the Company and you, and do not create any right in favor of any third party.
17.3 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Service. These changes will be effective immediately for new users of our Service. Continued use of our Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
17.4 Survival. The obligations and liabilities of you and the Company incurred prior to the termination date shall survive the termination of these Terms for all purposes. In addition to the foregoing, if you cancel your Account before the end of the current billing cycle, your cancellation will take full effect at the end of the billing cycle, and you will not be charged again. If your account is terminated by us for a breach of these Terms, especially for gross misbehavior or failure to pay, the Company reserves the right to effect such termination immediately, and in its sole discretion, without any proration of unused time in the billing cycle.
17.5 Disclosures. Company is located in Massachusetts. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. If you are located in the European Union, you may contact your local Data Protection Authority.
17.6 Electronic Communications. The communications between you and the Company, and communications made by the Company on your behalf, use electronic means, whether you use the Service or send us emails, or whether Company posts notices on the Service or communicates with you via email, text message, or otherwise. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
17.7 Entire Terms. Unless otherwise explicitly agreed to by you and the Company in writing, these Terms constitute the entire agreement between you and us regarding the use of the Service. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word ‘including’ means ‘including without limitation. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
17.8 Contact Information:
Nars Krishnamachari, President
1824 Beacon Street, #2
Brookline, Massachusetts 02445
17.9 Copyright/Trademark Information. Copyright © 2020 RueBaRue, Inc. All rights reserved. All trademarks, logos, and service marks (‘Marks’) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.