Royale Society Hospitality – Terms of Service
Effective Date: May 25, 2024
Last Modified: May 25, 2024
These Royale Society Hospitality Terms of Service (the “Terms of Service,” or the “Agreement”) govern the sale, access to, and use of the Services (as defined below) for reserving and participating in nightlife and entertainment experiences, accommodations, event planning, VIP services, and related activities at the Company's discretion (the “System”), which is licensed or sold by Royale Society Hospitality, LLC ("We", Us", or "the Company"). “Licensee” or “You” and its derivatives refers to the individual or entity identified accessing or using any content, information, Services, features, or resources available, enabled, or offered by Company through the www.royalesociety.com (the “Platform”) or through direct contact to a Company representative, or the individual or entity identified on the submission form by clicking the “Book Now”, “Buy,” or “Confirm Order”, or other similar button on our website (the “Online Order Form”), or otherwise submitting an Online Order Form or other fully executed order form (collectively with the Online Order Form, the “Order Forms”) for processing the Company. If You are an individual entering into this Agreement on behalf of an entity, You represent and warrant that You have the authority to enter into this Agreement on behalf of the entity that You named as the company on the Order Form. Licensee and Company are, together, the “Parties”, and each is a “Party.” For the avoidance of doubt, nothing herein grants Licensee any rights to any Company products or services that are not expressly set forth herein or on an Order Form that has been expressly accepted by the Company. An Order Form is not accepted by the Company until You receive a confirmation email, text, or phone call from the Company, confirming acceptance.
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BEFORE YOU START TO USE THE PLATFORM – THEY ARE IMPORTANT AND AFFECT YOUR LEGAL RIGHTS.
BY ACCESSING OR USING ANY CONTENT, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM AND OFFERED BY COMPANY THROUGH THE WEBSITE YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS AND CONDITIONS PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THESE TERMS.
YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS AND CONDITIONS, AND OUR PRIVACY POLICY, INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT WANT TO AGREE TO THESE TERMS AND CONDITIONS, OR THE PRIVACY POLICY YOU MUST NOT ACCESS OR USE THE WEBSITE.
1. SYSTEM AND SERVICES
1.1 Services
The Services provided by the Company encompass a wide range of offerings by Company and Third-Party Services (as defined below), including but not limited to nightlife experiences, entertainment, travel, dining, accommodations, lodging, yacht parties, event planning, VIP reservations, bottle service, private parties, special events, transportation services, guest list management, venue rentals, concert tickets, festival access, promotional campaigns, social media marketing, exclusive access to clubs and lounges, special requests, and any other entertainment services that are facilitated at the Company's sole and absolute discretion (the “Services”).
1.2 Provision of Services
You and Your Users must be at least twenty-one (21) years of age with valid ID to purchase any Services. Company shall host and provide to You the Platform and/or Services in accordance with this Agreement. Company’s personnel performing the Services may be either Company employees or subcontractor personnel. Company shall be responsible for any acts or omissions of Company’s employees or subcontractors that cause Company to be in breach of this Agreement. You agree to cooperate reasonably with Company’s efforts to provide the Services, and Company will not be responsible for any delays in providing the Services to the extent caused by Your failure to cooperate or to provide any required assistance. The Company reserves the right to accept or deny services to you at the Company's absolute and sole discretion after an Online Order Form is submitted through the Platform or any other form of submission to the Company, whether through social media, email, phone, or any other communication method.
1.3 Company Support and Company Platform Upgrades
Company will use commercially reasonable efforts to keep the Company Platform operational on a continuous basis during the term of this Agreement, exclusive of downtime necessary for scheduled and emergency maintenance. Company will provide support to you and get back to you within seven (7) business days of processing for all technical support issues relating to the Company Platform(excluding national holidays), for all technical support issues relating to the Company Platform. At Company’s sole discretion, Company shall make Upgrades available to You when generally available. For the avoidance of doubt, Company reserves the right to offer certain enhancements and optional services for the Company Platform for an additional charge, in Company’s sole discretion.
1.4 Third-Party Services
You understand and agree that some of the Services interoperate with, require Your use of, or require Your purchase with certain third-party products, services, platforms and websites that are not operated or controlled by Company (“Third-Party Services”). In the event that You use or interact with Third-Party Services, You will be subject to the terms of service, privacy and data collection practices of the providers of such Third-Party Services. Company has no liability or responsibility for any Third-Party Services, including without limitation for the safety, quality, accuracy, reliability, integrity or legality of any privacy practices, products or services of any Third-Party Services. Your use of all Third-Party Services is solely at Your own risk.
Reservations with Third-Party Services through the System and Services are not guaranteed until the reservation is paid for in full, and processed by Company and the Third-Party Services. Additional charges may be incurred if the number of people exceeds the amount listed on the reservation. All ticket, admission, and table service sales are final. No refunds will be provided from the Company for the use of Third-Party Services. All Services will take place as scheduled, rain or shine and no refunds will be given due to inclement weather. Clients must meet with the designated Company representative at the designated time and place on the day of the Services. Table reservations must be checked in by designated time, otherwise the reservation cannot be guaranteed and there will be no refunds if You and Your Users more than 30 minutes late. No-shows will be charged in full. You and Your Users must be at least 21 years of age and must present proper valid identification. Dress code is strictly enforced. Company is not responsible if You or Your Users are denied entry do to improper dress or lack of proper identification. There is a zero-tolerance policy in regard to the use and/or possession of illegal substances. You or Your Users will be refused entry if nightclub determines client is over intoxicated at the time of entry. No refunds will be allowed. Exact table location and section request is simply a request and not a guarantee. Seating capacity may vary based venue configuration of table. Table size is based on the number of individuals a table can accommodate and not the number of individual seats. For security purposes, You or Your Users’ name must match the name of the credit card used for the booking, and the credit card used for the booking must be presented at the time of redemption with matching valid ID. Company is not responsible or liable for personal belongings that are confiscated by Third-Party Services.
1.5 Product and Service Availability
In rare cases, a Service may be available when a customer places a reservation, but becomes unavailable. If this should occur, your sole remedy shall be to contact the Company to make alternative arrangements or to cancel the Services.
1.6 Product and Service Descriptions
The Company attempts to provide accurate descriptions of products and Services on the Platform and its Company communications. Company does not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free.
1.7 Special Requests
If You have any special requests in connection with the Services, you must submit them on the Platform or with a Company representative at the time you book your reservation. We will pass along any requests we deem reasonable to the relevant Third-Party Services. We cannot guarantee, however, that the Third-Party Services will fulfill such requests, as such services or amenities may not be available. Company is not liable for any failure to fulfill a special request, and no cancellation due to any special request not being met shall be allowed. Company does not accept Services requests conditioned or contingent on the fulfillment of a special request.
1.8 Cancellations and Changes to Reservations
With respect to the Services available on the Platform no cancellations, refunds, or modifications are allowed, without confirming with Company, and payment is charged at the time of purchase. No-shows will be charged in full. Reservations are not guaranteed until full payment is received and processed by Company and the associated service provider. After contacting Company we will specify whether you may be able to cancel or change your reservation. If you choose to cancel your reservation the initial deposit amount is not refundable. If a change to or cancellation of your reservation is permitted, you may be charged a cancellation or change fee based on Services reserved or purchased. You agree to pay any cancellation or change fees that you incur. You may not sell, auction, barter or transfer your reservation to a third party.
1.9 Data Transmission
We are not responsible for any compromise of data or data security caused by transmission across non-Company computer networks (including the internet).
2. LICENSE, OWNERSHIP AND RESTRICTIONS
2.1 License Grant
Subject to this Agreement, we grant You and Your Users a limited, non-exclusive, non-transferable, worldwide right, during the Term, to use the System for the sole purpose of accessing, reserving, and managing the System and Services. "Users" are defined as the individuals who are associated with You and who use the Platform or participate in the Services.
2.2 Ownership.
We retain all right, title and interest in and to the System and its components, outputs, and compilations, including all Intellectual Property Rights therein and any and all forms of media and materials, including but not limited to photographs, videos, audio recordings, text, graphics, images, software, data, and other multimedia elements, regardless of format, that are created, submitted, uploaded, posted, transmitted, or otherwise created or made available by the Company through the Services or You or anyone that submits or provides such content to the Company (“Content”). You agree not to challenge, object to, or otherwise interfere with Company’s exclusive right, title and interest in and to such Intellectual Property Rights and Content. To the extent Company cannot own any such rights by operation of law or otherwise, You, and anyone that uses the System or participates in the Services through You, grants Company a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use any such material provided by You, or obtained from You or anyone using the System or participating in the Services through You, in connection with Your use of the System or Services without restriction, including but not limited to Company’s right to display, edit, modify, reproduce, distribute, publish, store, or create derivative works of any such Content.
Subject to the terms and conditions of this Agreement, You hereby grant Company an irrevocable, perpetual, non-exclusive, royalty-free, non-transferable (except as expressly permitted under this Agreement), non-sublicensable (except as expressly permitted under this Agreement), worldwide license to reproduce, store, display and use any Content created through the Services and the name of any creator(s) associated with Your Content: (a) to provide the Services to You; (b) for other commercial purposes such as promoting, marketing, developing and improving Company’s products and services, testing and troubleshooting; and (c) to conduct sales and marketing to You.
Company will have the right to permit its subcontractors to exercise the foregoing rights.
Company will also have the right to permit third-party sublicensees to exercise the rights granted in herewith provided that such data is aggregated with data of other Company customers and does not identify You as the owner of such data.
2.3 Release of Name, Image, Likeness.
You hereby irrevocably permits, authorizes, grants, and licenses Company and its affiliates, successors, and assigns, and their respective licensees (e.g., advertising agencies, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them) ("Authorized Persons"), the rights to display, publicly perform, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, modify, alter, edit, adapt, exploit, sell, rent, license, otherwise use, and permit others to use your name, image, likeness, and appearance, voice, as well as biographical information, and all materials created by or on behalf of Company that incorporate any of the foregoing ("Materials") in perpetuity, in connection with the Platform, Services, and/or System, in or through databases, whether static, interactive, or otherwise, in live broadcasts or transmissions, in pre-recorded broadcasts or transmissions, in streaming video, animations, video or digital tape, DVD and/or CD-ROM, video on-demand, games, print media, and otherwise, for any purposes whatsoever, of any kind or nature anywhere in the world from now until the end of time, as well as advertising and promotional materials, press releases, the internet and other digital transmission or delivery methods, mobile applications, on any platform in connection with advertising, public relations, publicity, packaging, and promotion of the Company without further consent from or royalty, payment, or other compensation to You.
2.4 Company Marks
During the Term, subject to the terms and conditions of this Agreement, we grant to You a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use, display, and reproduce the trade name, logos, trademarks and service marks of the Company (the “Marks”), as provided by the Company to You, solely (a) as they appear on the Platform or Company’s social media accounts without modification, in Your use, display and distribution of Company Content, (b) as they appear on any marketing materials provided by the Company in Your distribution of such marketing materials, without modification, and (c) upon Company’s prior written approval, on Your website or social media to promote Your use of the Company’s Services, provided that You do not suggest any partnership or endorsement by the Company of You or Your business, products, or services. We grant no rights in the Company Marks other than those expressly granted in this section. You acknowledge our exclusive ownership of the Company Marks and agree that all goodwill arising as a result of Your use of the Company Marks will inure solely to the benefit of the Company. You agree not to take any action inconsistent with such ownership. You shall not adopt, use, or attempt to register any trademarks, trade names, or service marks that are confusingly similar to the Company Marks or in such a way as to create combination marks with the Company Marks. At our request, You will modify or discontinue any use of the Company Marks if we determine, in our sole discretion, that such use does not comply with this Agreement or our then-current trademark usage policies and guidelines. Any breach of this Section, or failure to sufficiently comply with the Company’s request for modification or discontinuance of use, in each case as determined by the Company in its sole discretion, shall be considered a material breach of this Agreement.
2.5 Linking to the Company Platform
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Company Platform for noncommercial purposes, provided that such link does not portray Company or any of our services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time.
You may link to our Company Platform, provided You do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but You must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.
3. YOUR RESPONSIBILITIES
3.1 System Access.
Only You and your Users may access the System. You will ensure that each User uses the System in accordance with applicable laws and this Agreement. You are responsible for (a) all use of the System that occurs in connection with credentials associated with Your Users, and (b) immediately reporting any suspected loss, compromise, or unauthorized use of such credentials or any other unauthorized use of or access to the System. We will not be liable for any loss or damage arising from You or Your Users’ failure to safeguard access credentials.
3.2 Connectivity.
You and Your Users are responsible for any network or internet connectivity required to access or use the System. An internet connection is required to access the System. We are not responsible for System performance issues related to internet or network connectivity problems, and any timelines related to authentication (i.e., time to provide initial or verified results) assume You and Your Users are connected to the internet when the imaging is performed.
3.3 General.
In addition to obligations identified elsewhere in this Agreement, You will provide access to such information, personnel and systems we reasonably require to support the System.
3.4 Non-Disparagement.
You agree and covenant that You will not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning Company, or its businesses, or any of its employees, officers, and existing and prospective clients, suppliers, investors, and other associated third parties.
3.5 Other Prohibited Conduct.
You agree to use our site only for lawful purposes. You shall not use the Company Platform or the Services, either directly or indirectly, to:
4. TERMS AND TERMINATION
4.1 Term. This Agreement is valid for the period from acceptance of this Agreement and shall continue in full force and effect in perpetuity, unless terminated earlier in accordance with this Agreement.
4.2 Termination by You. You may terminate this Agreement for a material breach by the Company that remains uncured ninety (90) days after You provide the Company with written notice thereof.
4.3 Suspension and/or Termination by Company. Company has the right to, immediately and without notice, suspend or terminate access to the System or any portions thereof, including any account or access rights of You or any of Your Users, and/or revoke and invalidate any or all Online Order Forms or requested Services, if Company deems in its sole discretion that (a) timely payment of the Fees (as defined below) has not been received by Company, (b) You or Your Users or Your Customers have materially breached any provision of the Agreement, (c) doing so is required for compliance with applicable laws, rules, regulations, or third party agreements (e.g., where the provision of the System or any component thereof is, or becomes, unlawful), or (d) doing so is necessary for the protection of Company, its customers, Users, employees, agents, business partners, Third-Party Services, business, or any other third parties. You agree that all such terminations or suspensions of Services or other rights granted herein, shall be made in Company’s sole discretion and that Company shall not be liable to You or any third party for any such termination, suspension, revocation, or invalidation. For the avoidance of doubt, any breach by You or any of Your Users or customers of any of Your representations or warranties set forth in this Agreement shall be deemed a material breach.
4.4 Effect of Termination. Upon termination of this Agreement: (a) the Services will end immediately and all rights and licenses granted herein that are not perpetual shall immediately terminate; (b) You will cease using and offering use of the System immediately; and (c) You will pay any Fees accrued prior to the effective date of termination.
4.5 Survival.
Notwithstanding the expiration or earlier termination of Services or your Platform registration or usage, or any general legal principles to the contrary, any provision of these Terms of Service that impose or contemplate continuing obligations or rights of a party will survive expiration or termination of these Terms of Service.
5. PAYMENTS
5.1 Fees.
You shall pay Company or its Third-Party Services the Fees applicable to the Services You select or request, within or outside (such as special requests) the Platform. In the event of early termination of this Agreement, You will pay any Fees then accrued and payable for Services performed through the effective date of termination. Except as otherwise expressly provided in this Agreement, all Fees are non-refundable. You shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Company may, at its option, apply money received from You against any money then due to You. You and Company shall use good faith efforts to resolve any disputed Fees.
Company pre-negotiates certain rates with Third-Party Services to facilitate the booking of reservations on your behalf for Services. Company retains service fees as compensation for facilitating reservations, which vary according to the amount and type of reservation and Services booked through Company. The rates displayed on the Platform or by quote reflecting Company pre-negotiated rates, which include the fees retained by Company. Company strives to provide accurate pricing information regarding the products and Services available on the Platform. We cannot, however, insure against pricing errors or pricing changes. Company reserves the right, at its sole discretion, to not process or cancel any bookings placed for a product or Service whose price was (1) incorrectly provided as a result of an error, or (2) changed by the Third-Party Services. If this occurs, Company will notify you by email and correct the pricing on the Platform. If additional charges apply to your booking (including but not limited to the addition of an extra traveler, resort fees or other taxes or incidentals), which charges you do not pay at the time of checkout and or payment on the Platform, you will be responsible for paying these charges directly to the Third-Party Services. Company does not guarantee that it offers best available rates for products and services available on the Platform. Company reserves the right to change the prices of Services at any time, notification of which may be sent by email or posted on the Platform. Use of the Services by You following such notification constitutes Your acceptance of any new or increased charges.
5.2 Payment and Billing Information
THE COMPANY DOES NOT RETAIN ANY OF THE PAYMENT INFORMATION PROVIDED BY YOU TO OUR THIRD-PARTY PAYMENT PROCESSOR FOR FIAT TRANSACTIONS, AND YOU HEREBY WAIVE ALL AND ANY CLAIMS OF LIABILITY AGAINST COMPANY ARISING FROM THE MISUSE OF SUCH INFORMATION BY SUCH THIRD-PARTY FIAT PAYMENT PROCESSOR. THE COMPANY SHALL NOT BE LIABLE FOR ANY PAYMENT OR SIMILAR ISSUES THAT ARISE DUE TO THE THIRD-PARTY SERVICE. THE COMPANY MAY CHANGE THE THIRD-PARTY SERVICE FROM TIME TO TIME.
You represent and warrant that if You desire to perform a transaction, You are authorized to use the designated credit or debit card and that You authorize our Third-Party Payment Processor to charge Your Payment Method for the total amount of Your requested Services, or use any other paid function of the Company Platform and use an associated amount of funds needed for that function. If there’s not sufficient amount of funds associated with Your Payment Method, Your Order may be suspended or cancelled. You must resolve any problems with Your bank before we proceed with Your Order. If You want to change or update Your Payment Method, You can do so at any time. The Company reserves the right at any time to change its billing methods.
If a payment is not successfully settled and You do not edit Your payment method information or cancel any transaction, purchases as applicable, You remain responsible for any uncollected amounts and, with respect to Your unpaid Services period, authorize us to continue charging the Payment Method associated with You, as it may be updated. You acknowledge that the amount billed may vary due to promotional offers, preferences You select, changes You make to Your requested Services or changes in applicable taxes or other charges, and You authorize Company (and Third-Party Payment Processor) to charge Your payment method for the corresponding amount.
You are responsible for all charges associated with connecting to or using our Company Platform and all amounts owed to Your internet service provider. You agree that all such charges incurred by You are entirely Your responsibility. For example, depending on Your particular location and chosen internet service provider, You may be responsible for long-distance charges and/or other communication surcharges. Any discounts and promotional pricing associated with Your Profile, will expire as applicable, except where prohibited by applicable laws.
If You believe that Your Payment Method has been erroneously billed, please notify us immediately of such error. If we do not hear from You within thirty (30) days after such billing error first appears on any statement, such fee will be deemed accepted by You for all purposes, including resolution of inquiries made by You or your bank. You release us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to us within thirty (30) days of its publication. We reserve the right to impose transaction limits on Users based upon a variety of factors including, without limitation, length of membership to the Company Platform, location, change in access information, and amount of refund requests. Please note that abuse of special offers, including creating multiple accounts to take advantage of such offers, is a violation of these Terms.
5.3 Prices on the Company Platform
All prices for the Transactions are shown in US Dollars. Applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice, including without limitation, as based on any criteria as we may establish from time to time; provided, however, that if we change the amounts or other charges associated with our various Services, we will provide advance notice of such changes by sending email, text, or by any other means deemed reasonable by us in our sole and absolute discretion.
If any such change is unacceptable to You, You may terminate Services provided by the Company. Your continued use of our Company Platform, System, or Services following the effective date of any such change shall constitute Your acceptance of any such change.
5.4 Refunds
If You place an Order and the Service(s) are discontinued, Company reserves the right to (i) cancel Your order and provide You a refund for the amount paid for the Service (if the Service is a one-time product order), or (ii) issue You a pro rata refund – a choice of said options (or none of the options at all) being at the sole and absolute discretion of Company, handled on a case-by-case basis. If Company elects, at its sole discretion to provide You with a refund, You hereby agree and acknowledge that Company does not refund any interest or transaction fees that might have been charged to You, and You agree that Company is not liable to You for such interest or fees. If you place an order through Third-Party Services, you will be bound by their refund policies, and Company will not be liable.
Users agree and understand that if You or Your Users breach any part of this Agreement, then You and Your Users are not, under any circumstances, entitled to a refund for Services purchased.
5.5 Taxes.
You shall bear all local, state and federal sales, use, gross receipts, excise, import or export, value added or similar taxes, duties, fees, assessments or levies (“Taxes”), if any, legally imposed in connection with the Fees paid hereunder. Company shall separately state on each Order Form, and You shall pay, any Taxes; provided, however, that You shall not be responsible for taxes on Company’s net income, profits, business assets, or ad valorem personal property.
5.6 Payment Processor.
To the extent You are paying by credit card, all Fees are processed by a third-party payment service (the “Payment Processor”) and You consent to the use of such service. Currently, Company uses TicketSpice.com and its affiliates as its third party payment service (e.g., card acceptance, merchant settlement, and related services) and therefore by making any payments on or through Company’s System, You agree to be bound by TicketSpice.com privacy policy (currently accessible at https://www.ticketspice.com/privacy-policy and its terms of service (currently accessible at https://www.ticketspice.com/terms-of-use) and hereby consent and authorize Company and TicketSpice.com to share any information and payment instructions You provide to the other to complete Your transactions. Company reserves the right to change its Payment Processor(s) with or without notice to You.
5.7 Remedies for Non-Payment
In addition to any other remedies available to Company, in the event that You fail to pay any Fees when due: (a) Company will have the right to immediately suspend or block its Services until full payment of such amounts is received; and (b) You shall pay a late charge equal to the lesser of 1.5% per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance, and such charge shall accrue beginning on the day after such amount is due.
5.8 Changes.
We may change our charges and billing practices at any time, either by posting notice of such change via the System or notifying You via email, provided that any such change will take effect on the following renewal date, so please check regularly for such notifications.
6. REPRESENTATIONS, WARRANTIES, AND DISCLAIMER
You represent and warrant on behalf of Yourself and Your Users that:
(a) You have full power and authority to enter into and perform this Agreement, and the person who submitted the Order form or requested Services on Your behalf has been duly authorized and empowered to enter into this Agreement;
(b)You will not violate any provision of these Terms;
(c) Your use of the System shall comply with all applicable laws, rules, and regulations;
(d) You and Your Users are at least twenty-one (21) years of age with valid ID:
(e) You and Your Users will not submit any false or misleading images to the Platform.
For the avoidance of doubt, a breach of this Section 6.1 shall be deemed a material breach.
7. INDEMNIFICATION
7.1 Your Indemnification
You, at Your own expense, will indemnify, defend and hold harmless Company, its Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the “Company Indemnitees”) from and against any Claim, including but not limited to any losses arising therefrom, brought by any third party against any Company Indemnitee to the extent that such Claim is based on, or arises out of: (a) any Feedback that You provide; (b) any breach or purported breach of Your obligations, representations and/or warranties under this Agreement or any contract with any provider of Third-Party Services under which You are bound; or (c) the fraud, gross negligence or willful misconduct of You, Authorized Users or Your employees or subcontractors.
7.2 Indemnification Procedures
Your obligations (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless the Company and its Affiliates, and their respective directors, officers, employees, representatives and agents (each, an “Indemnitee”) shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
8. SYSTEM INFORMATION.
We collect information and data related to performance of the System, including response times, image processing times, usage statistics, and activity logs (collectively, “Performance Data”). Performance Data does not include any personally identifiable information or Licensee-specific output resulting from the use of the System (“Licensee Output”) but may include aggregated or de-identified information derived from Licensee Output that would not be reasonably expected to identify Licensee or one of its Users. Performance Data is used to contribute to analytical models used by Company, to provide our services, and to operate and improve the System and is Company’s property.
9. GENERAL PROVISIONS
9.1 Assignment.
You may not assign this Agreement without Company’s prior written consent. Any attempted assignment in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns. Company may freely assign this Agreement.
9.2 Entire Agreement; Amendment.
This Agreement, along with any mutually agreed upon amendments and addenda, (a) is the Parties’ entire understanding regarding its subject matter, and (b) supersedes all other oral or written agreements of the Parties as to such subject matter. We may update this Agreement by modifying this web page, and will (x) indicate the date of any such updates above and (y) email You at the email address then on file to notify You of such update. You will be deemed to have accepted such modifications if You continue to access the System or do not provide a termination notice within fifteen (15) days’ of release of the updated Agreement. In the event You provide such a notice, Company shall have the option, in its sole discretion, of reverting the terms to the previously accepted version of the Agreement (as applicable to You only), in which case Your termination notice would be void. Referenced policies and procedures may be changed at any time in Company’s sole discretion. Any terms and conditions in or referenced by an invoice, purchase order or other such document issued pursuant to this Agreement, other than the Order Form, will have no force or effect.
9.3 Feedback
You hereby grant Company an unrestricted, perpetual, irrevocable, royalty-free, worldwide right and license to use all feedback, suggestions, improvements, and recommendations You or Your Users provide regarding the System (“Feedback”), and You acknowledge that Company may use the Feedback in its sole discretion without any notice or other obligation to You. Company expects You to maintain a high level of integrity with respect to Feedback posted through the Website, and You agree: (i) to base any rating or review You post only on Your first-hand experience with the applicable product or recipe; (ii) You will not provide a rating or review for any product, recipe or service with respect to which You have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) You will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) Your review will comply with these Terms. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Feedback without notice.
9.4 Notices
A communication intended to have legal effect under this Agreement (a “notice”) must be written and delivered to (a) us at the address set forth at 340 SE 3rd St., Apt 1905, Miami, FL 33131, as may be amended from time to time, or (b) You at the email address identified on the Order Form, and will be effective on receipt or when delivery is refused. Operational communications, including changing a Party’s notice address, may be delivered via email. You are responsible for keeping Your contact information up to date.
9.5 Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
9.6 Data Security and Privacy
Company shall use commercially reasonable efforts to maintain a data security program that includes physical, technical, and managerial procedures that are up-to-date and generally accepted in Company’s industry that are designed to prevent unauthorized use or disclosure of Your data stored in the Services. Company will have the right to suspend Your access to the Services on an emergency basis: (a) in the event that Company detects any actual or apparent theft, unauthorized access or use of the Services, or other malicious activity by You or any third party; and/or (b) to maintain data integrity within the Services. The parties shall each comply with all applicable privacy laws and regulations relating to the protection of personal data. You hereby consent to Company’s use of any personal information that You provide to the Company Platform: (i) for the purpose of providing the Services to You; (ii) to conduct sales and marketing to You; and (iii) in any additional manner described in the Company Privacy Policy governing the Services. Please refer to the Company Privacy Policy for information about how we collect, use and share personal information about You.
9.7 Independent Contractors.
Company and Licensee are independent contractors, and this Agreement does not create a joint venture, partnership, principal-agent or employment relationship between them. Neither Party will have, or represent to a third party that it has, the authority to act for or bind the other Party.
9.8 No Third Party Beneficiaries.
This Agreement is solely for the benefit of the Parties hereto.
9.9 Attribution.
Company may identify Licensee as a client on its webpage and in standard marketing materials.
9.10 Severability.
Any provision of this Agreement found invalid or unenforceable will be restated to reflect the original intent as closely as possible in accordance with applicable law. The invalidity or unenforceability of any provision herein will not affect the validity or enforceability of any other provisions.
9.11 Force Majeure.
Neither Party will be liable for a failure to fulfill its obligations (excluding payment obligations) due to causes beyond its reasonable control, including acts of God, earthquake, fire, hurricane, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war, and epidemics, that cannot be mitigated through the exercise of due care.
9.12 Governing Law and Venue.
This Agreement, including its formation, will be governed by and interpreted according to the laws of the State of Florida without regard to its conflicts of laws provisions that would require a different result. Each Party agrees that any and all causes of action between the Parties arising from or in relation to this Agreement shall be brought exclusively in the state and federal courts located in Miami-Dade County, Florida.
9.13 Disclaimers
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DOCUMENTATION WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE SERVICES WILL BE ACCURATE, COMPLETE OR RELIABLE, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED. WHILE COMPANY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD COMPANY RESPONSIBLE FOR ANY BREACH OF SECURITY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
YOUR USE OF THE COMPANY PLATFORM AND SERVICES IS AT YOUR OWN RISK. THE COMPANY PLATFORM, ITS CONTENT, AND ANY SERVICES OBTAINED THROUGH THE COMPANY PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE COMPANY PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE COMPANY PLATFORM, ITS CONTENT, OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE COMPANY PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE COMPANY PLATFORM OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE COMPANY PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR COMPANY PLATFORM OR SERVICE YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
9.14 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY, NOR ITS AFFILIATES OR LICENSORS SHALL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES OR DAMAGES FOR LOSS OF USE OR LOSS OF DATA. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS UNDER THIS AGREEMENT EXCEED THE GREATER OF: (A) US$100; OR (B) TOTAL FEES PAID OR PAYABLE TO COMPANY HEREUNDER THE RELEVANT ORDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
COMPANY WILL NOT BE LIABLE, WITHOUT LIMITATION, FOR ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM (A) DATA BEING "BRUTEFORCED", (B) SERVER FAILURE OR DATA LOSS, (C) FORGOTTEN PASSWORDS, (D) CORRUPTED FILES, (E) INCORRECTLY CONSTRUCTED TRANSACTIONS OR MISTYPED ADDRESSES, OR (F) "PHISHING", VIRUSES, THIRD-PARTY ATTACKS OR ANY OTHER UNAUTHORIZED THIRD-PARTY ACTIVITIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE COMPANY PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE COMPANY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, 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.”
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT AFFECT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAW/JURISDICTION.
9.15 BINDING ARBITRATION:
NOTICE: PLEASE READ THIS SECTION OF THESE RULES CAREFULLY. IT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHTS TO TRY CLAIMS IN COURT BEFORE A JUDGE OR JURY AND THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION.
MANDATORY INFORMATION DISPUTE RESOLUTION: If You or Company have a Claim (defined below), You and Company agree to make a good faith effort to resolve it informally prior to initiating a formal arbitration proceeding. The party that intends to initiate an arbitration proceeding must first send a notice to the other party that describes the Claim. The notice must include the initiating party’s name and contact information (address, telephone number, and email address) and a detailed description of (1) the nature and basis of the Claim and (2) the nature and basis of the relief sought, with a detailed calculation. Your notice shall be sent by mail to 340 SE 3rd St., Apt 1905, Miami, FL 33131, Attn: Legal Department. You must personally sign the notice. Company’ notice to You shall be sent to the most recent contact information we have on file for You. If requested by the party that receives the notice, the other party must personally participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the Claim. If the Claim is not resolved within sixty (60) days after receipt of the notice (which period can be extended by agreement of You and us), You or Company may commence an arbitration proceeding consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing a demand for arbitration. The statute of limitations and any filing fee deadlines for a formal arbitration proceeding shall be tolled while the parties engage in this informal dispute resolution process. If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, it may be decided by a court at either party’s election, and any arbitration proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
AGREEMENT TO ARBITRATE: If We are unable to resolve a Claim through the mandatory informal dispute resolution process, You and Company agree that, except as set forth below, all Claims between You and us will be resolved entirely through the binding individual arbitration process set forth in this Section. For purposes of this Section, “Company,” “we,” “our,” and “us” include Company and its employees, officers, directors, parents, agents, controlling persons, subsidiaries, affiliates, predecessors, acquired entities, successors, and assigns.
CLAIMS: “Claims” subject to this Section include all of the following: (1) claims relating to or arising out of these Rules or any prior or later versions of these Rules, as well as any changes to the terms of these Rules; (2) claims relating to or arising out of any aspect of any relationship between You and us; (3) claims relating to or arising out of Your access of, use of, or any transactions through, by, or using the Company Property, including receipt of any advertising, marketing, or other communications from Company; and (4) claims relating to the interpretation, scope, applicability, or enforceability of these Rules or this Section except as set forth in Section 18(b), Section 18(k), and Section 18(l). Except as provided below, (1) claims are subject to arbitration whether they are based in contract, tort, federal or state statute, constitution, regulation, or any other legal theory, or whether they seek legal or equitable remedies; (2) all claims are subject to arbitration whether they arose in the past, may currently exist, or may arise in the future; and (3) claims include claims or disputes that arose before the parties entered into these Rules or after termination of these Rules.
CLAIMS NOT COVERED BY ARBITRATION: Claims filed by You or by us in a small claims court are not subject to arbitration, so long as the dispute remains in such court and advances only an individual claim for relief. Claims filed by You or us in court to enjoin infringement or other misuse of intellectual property rights are also not subject to arbitration.
COMMENCING AN ARBITRATION: Except as set forth in this Section 9.15, unless the parties agree to select a different arbitration administrator, the arbitration shall be administered by the American Arbitration Association (“AAA“) as follows: under AAA’s Commercial Rules for commercial disputes and under AAA’s Consumer Arbitration Rules for consumers with non-commercial disputes, except as modified by this Section. AAA’s rules may be obtained from www.adr.org or 1-800-778-7879 (toll-free). If AAA is for any reason unable to serve and the parties are unable to agree on an alternative arbitration administrator, then a court of competent jurisdiction shall appoint an arbitration administrator. To commence an arbitration proceeding, You or Company must send a personally signed demand for arbitration that describes (1) the nature and basis of the Claim(s), and (2) the nature and basis of the relief sought, including a detailed calculation, along with a certification that You or we are party to this Section and completed the informal dispute resolution process referenced above. Your notice shall be sent to 340 SE 3rd St., Apt 1905, Miami, FL 33131, Attn: Legal Department. Company’ notice shall be sent to the most recent contact information we have on file for You. You or Company must also contact AAA or chosen arbitration administrator and follow its appropriate procedures to commence the arbitration.
ARBITRATION PROCEDURE:
Unless You and We agree otherwise in writing, the arbitration shall be decided by a single, neutral arbitrator, who shall be a retired judge or a lawyer with at least ten years of experience, selected in accordance with the chosen arbitration administrator’s rules.
The arbitrator will decide the Claim or Claims in accordance with the terms these Rules and applicable substantive law, including the FAA, and applicable statutes of limitation. The arbitrator shall honor claims of privilege recognized at law. Except as provided in this Section 9.15, the arbitrator may award damages or other relief (including injunctive relief) available to the individual claimant under applicable law.
The arbitrator will take reasonable steps to protect proprietary or confidential information. Any arbitration hearing shall take place in the county in which You reside, unless the parties agree in writing to a different location or the arbitrator so orders. If all Claims are for $10,000 or less, You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing in accordance with the arbitration administrator’s rules. You and a Company representative shall personally appear (with counsel if You and we are represented) at an initial telephone conference with a case manager before an arbitrator is appointed and at a hearing should one be scheduled by the arbitrator.
At Your or our request, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and binding except that any party may appeal any award relating to a Claim for more than $100,000 or for injunctive relief to a three-arbitrator panel appointed by the arbitration administrator, which will reconsider de novo any aspect of the appealed award. The panel’s decision will be final and binding. In either event, You or we may seek to have the award vacated or confirmed and entered as a judgment in any court having jurisdiction.
ARBITRATION COSTS: Payment of all filing, administration, and arbitrator fees will be governed by the applicable AAA rules as set forth above or, if a different arbitration administrator is selected, its rules. If You are a consumer with a non-commercial dispute, we will pay any filing, administration, or arbitrator fees the arbitration administrator requires You to pay if, in a writing signed by You: (1) You claim to be unable to afford it; and (2) You demonstrate that You sought, but were unable to obtain, a waiver of that fee from the arbitration administrator. To the extent allowed by applicable law and our agreements, the arbitrator may award arbitration costs and attorneys’ fees to the prevailing party.
JURY WAIVER AND LIMITATION OF RIGHTS: You and We agree that, by agreeing to arbitrate any Claims, the parties are each waiving the right to a trial by jury or a trial before a judge in court (except for matters that may be taken to a court pursuant to this Section). You and we acknowledge that arbitration will limit our legal rights, including the right to participate in a class action, the right to a jury trial, the right to conduct full discovery, and the right to appeal.
CLASS ACTION AND REPRESENTATIVE ACTION WAIVER: You and We agree that each may bring Claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless mutually agreed to by You and us, the claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration. The arbitrator shall have no authority to conduct any class, private attorney general or other representative proceeding.
PUBLIC INJUNCTIVE RELIEF WAIVER: Neither You nor We will have the right to seek public injunctive relief as a remedy for any Claim against one another (a “Public Injunctive Relief Request”) in arbitration, if such a waiver is permitted by the FAA. If such a waiver is deemed unenforceable, You and we agree that the Public Injunctive Relief Request shall be severed from any other Claims and/or remedies You have. The Public Injunctive Relief Request must be adjudicated by a court after all Your other Claims to be decided in arbitration under this Section are resolved in arbitration. The validity, enforceability, and effect of this Section 9.15 shall be determined exclusively by a court, and not by any arbitration administrator or arbitrator.
ADDITIONAL PROCEDURES FOR MASS ARBITRATION:
If twenty-five (25) or more similar claims of consumers with non-commercial disputes are asserted against Company by the same or coordinated counsel or are otherwise coordinated (and Your Claim is one such claim), You understand and agree that the resolution of Your Claim might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules.
Counsel for the claimants and counsel for Company shall each select fifteen (15) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the initial bellwether process.
If the parties are unable to resolve the remaining cases after the conclusion of the initial thirty (30) proceedings, the parties shall participate in a global mediation session before a retired judge, and Company shall pay the mediator’s fee. If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of this staged process.
If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired judge, and Company shall pay the mediator’s fee. If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by the AAA in staged sets, until all the claims included in these coordinated filings, including Your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, Company agrees to participate in a global mediation session should Your counsel request it in an effort to resolve all remaining claims.
A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator unless the parties agree otherwise. The statute of limitations and any filing fee deadlines shall be tolled for Claims subject to this Section 9.15 from the time the first cases are selected for the initial bellwether process until the time Your case is selected, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have the authority to enforce this paragraph by enjoining the mass filing or prosecution of arbitration demands against Company. Should a court of competent jurisdiction decline to enjoin this Section 9.15, You and we agree that Your and our counsel shall engage in good faith discussions with the assistance of an arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees.
9.16 Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE WEBSITE, OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
9.17 Electronic Communications
The communications between You and Company use electronic means, whether You visit the Company Platform or send Company e-mails, or whether Company posts notices on the Company Platform or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms, agreements, notices, disclosures, and other communications and documents that Company provides to You electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing." The foregoing sentence does not affect Your statutory rights.
9.18 Waiver.
No waiver by Company of any term or condition set out in these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Company to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms and Conditions will continue in full force and effect. These Terms and Conditions and all the documents incorporated herein (such as our Privacy Policy) constitute the sole and entire agreement between You and Company regarding the Website and Your order, receipt and use of Service and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You without the prior written consent of Company. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
9.19 Headings and Interpretation.
Headings are for reference only and do not affect the Parties’ obligations. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holidays.
9.20 Changes to these Terms
We may update our Terms from time to time. If we make material changes to these Terms we will notify You by posting the new Terms on this page. We will let You know via email and/or a prominent notice on our Company Platform, prior to the change becoming effective and update the "Last Modified" date at the top of these Terms. You are responsible for ensuring we have an up-to-date active and deliverable email address for You, and for periodically visiting our Company Platform and these Terms to check for any changes. You are advised to review these Terms frequently for any changes. Changes to these Terms are effective when they are posted on this page.
Contact Us
All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Complaints section of these Terms in the manner and by the means set out therein.
All other feedback, comments, requests for technical support, and other communications relating to the Company Platform or these Terms should be directed to:
Royal Society Hospitality, LLC
340 SE 3rd St., Apt 1905
Miami, FL 33131
[email protected]
Effective Date: May 25, 2024
Last Modified: May 25, 2024
These Royale Society Hospitality Terms of Service (the “Terms of Service,” or the “Agreement”) govern the sale, access to, and use of the Services (as defined below) for reserving and participating in nightlife and entertainment experiences, accommodations, event planning, VIP services, and related activities at the Company's discretion (the “System”), which is licensed or sold by Royale Society Hospitality, LLC ("We", Us", or "the Company"). “Licensee” or “You” and its derivatives refers to the individual or entity identified accessing or using any content, information, Services, features, or resources available, enabled, or offered by Company through the www.royalesociety.com (the “Platform”) or through direct contact to a Company representative, or the individual or entity identified on the submission form by clicking the “Book Now”, “Buy,” or “Confirm Order”, or other similar button on our website (the “Online Order Form”), or otherwise submitting an Online Order Form or other fully executed order form (collectively with the Online Order Form, the “Order Forms”) for processing the Company. If You are an individual entering into this Agreement on behalf of an entity, You represent and warrant that You have the authority to enter into this Agreement on behalf of the entity that You named as the company on the Order Form. Licensee and Company are, together, the “Parties”, and each is a “Party.” For the avoidance of doubt, nothing herein grants Licensee any rights to any Company products or services that are not expressly set forth herein or on an Order Form that has been expressly accepted by the Company. An Order Form is not accepted by the Company until You receive a confirmation email, text, or phone call from the Company, confirming acceptance.
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BEFORE YOU START TO USE THE PLATFORM – THEY ARE IMPORTANT AND AFFECT YOUR LEGAL RIGHTS.
BY ACCESSING OR USING ANY CONTENT, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM AND OFFERED BY COMPANY THROUGH THE WEBSITE YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS AND CONDITIONS PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THESE TERMS.
YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS AND CONDITIONS, AND OUR PRIVACY POLICY, INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT WANT TO AGREE TO THESE TERMS AND CONDITIONS, OR THE PRIVACY POLICY YOU MUST NOT ACCESS OR USE THE WEBSITE.
1. SYSTEM AND SERVICES
1.1 Services
The Services provided by the Company encompass a wide range of offerings by Company and Third-Party Services (as defined below), including but not limited to nightlife experiences, entertainment, travel, dining, accommodations, lodging, yacht parties, event planning, VIP reservations, bottle service, private parties, special events, transportation services, guest list management, venue rentals, concert tickets, festival access, promotional campaigns, social media marketing, exclusive access to clubs and lounges, special requests, and any other entertainment services that are facilitated at the Company's sole and absolute discretion (the “Services”).
1.2 Provision of Services
You and Your Users must be at least twenty-one (21) years of age with valid ID to purchase any Services. Company shall host and provide to You the Platform and/or Services in accordance with this Agreement. Company’s personnel performing the Services may be either Company employees or subcontractor personnel. Company shall be responsible for any acts or omissions of Company’s employees or subcontractors that cause Company to be in breach of this Agreement. You agree to cooperate reasonably with Company’s efforts to provide the Services, and Company will not be responsible for any delays in providing the Services to the extent caused by Your failure to cooperate or to provide any required assistance. The Company reserves the right to accept or deny services to you at the Company's absolute and sole discretion after an Online Order Form is submitted through the Platform or any other form of submission to the Company, whether through social media, email, phone, or any other communication method.
1.3 Company Support and Company Platform Upgrades
Company will use commercially reasonable efforts to keep the Company Platform operational on a continuous basis during the term of this Agreement, exclusive of downtime necessary for scheduled and emergency maintenance. Company will provide support to you and get back to you within seven (7) business days of processing for all technical support issues relating to the Company Platform(excluding national holidays), for all technical support issues relating to the Company Platform. At Company’s sole discretion, Company shall make Upgrades available to You when generally available. For the avoidance of doubt, Company reserves the right to offer certain enhancements and optional services for the Company Platform for an additional charge, in Company’s sole discretion.
1.4 Third-Party Services
You understand and agree that some of the Services interoperate with, require Your use of, or require Your purchase with certain third-party products, services, platforms and websites that are not operated or controlled by Company (“Third-Party Services”). In the event that You use or interact with Third-Party Services, You will be subject to the terms of service, privacy and data collection practices of the providers of such Third-Party Services. Company has no liability or responsibility for any Third-Party Services, including without limitation for the safety, quality, accuracy, reliability, integrity or legality of any privacy practices, products or services of any Third-Party Services. Your use of all Third-Party Services is solely at Your own risk.
Reservations with Third-Party Services through the System and Services are not guaranteed until the reservation is paid for in full, and processed by Company and the Third-Party Services. Additional charges may be incurred if the number of people exceeds the amount listed on the reservation. All ticket, admission, and table service sales are final. No refunds will be provided from the Company for the use of Third-Party Services. All Services will take place as scheduled, rain or shine and no refunds will be given due to inclement weather. Clients must meet with the designated Company representative at the designated time and place on the day of the Services. Table reservations must be checked in by designated time, otherwise the reservation cannot be guaranteed and there will be no refunds if You and Your Users more than 30 minutes late. No-shows will be charged in full. You and Your Users must be at least 21 years of age and must present proper valid identification. Dress code is strictly enforced. Company is not responsible if You or Your Users are denied entry do to improper dress or lack of proper identification. There is a zero-tolerance policy in regard to the use and/or possession of illegal substances. You or Your Users will be refused entry if nightclub determines client is over intoxicated at the time of entry. No refunds will be allowed. Exact table location and section request is simply a request and not a guarantee. Seating capacity may vary based venue configuration of table. Table size is based on the number of individuals a table can accommodate and not the number of individual seats. For security purposes, You or Your Users’ name must match the name of the credit card used for the booking, and the credit card used for the booking must be presented at the time of redemption with matching valid ID. Company is not responsible or liable for personal belongings that are confiscated by Third-Party Services.
1.5 Product and Service Availability
In rare cases, a Service may be available when a customer places a reservation, but becomes unavailable. If this should occur, your sole remedy shall be to contact the Company to make alternative arrangements or to cancel the Services.
1.6 Product and Service Descriptions
The Company attempts to provide accurate descriptions of products and Services on the Platform and its Company communications. Company does not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free.
1.7 Special Requests
If You have any special requests in connection with the Services, you must submit them on the Platform or with a Company representative at the time you book your reservation. We will pass along any requests we deem reasonable to the relevant Third-Party Services. We cannot guarantee, however, that the Third-Party Services will fulfill such requests, as such services or amenities may not be available. Company is not liable for any failure to fulfill a special request, and no cancellation due to any special request not being met shall be allowed. Company does not accept Services requests conditioned or contingent on the fulfillment of a special request.
1.8 Cancellations and Changes to Reservations
With respect to the Services available on the Platform no cancellations, refunds, or modifications are allowed, without confirming with Company, and payment is charged at the time of purchase. No-shows will be charged in full. Reservations are not guaranteed until full payment is received and processed by Company and the associated service provider. After contacting Company we will specify whether you may be able to cancel or change your reservation. If you choose to cancel your reservation the initial deposit amount is not refundable. If a change to or cancellation of your reservation is permitted, you may be charged a cancellation or change fee based on Services reserved or purchased. You agree to pay any cancellation or change fees that you incur. You may not sell, auction, barter or transfer your reservation to a third party.
1.9 Data Transmission
We are not responsible for any compromise of data or data security caused by transmission across non-Company computer networks (including the internet).
2. LICENSE, OWNERSHIP AND RESTRICTIONS
2.1 License Grant
Subject to this Agreement, we grant You and Your Users a limited, non-exclusive, non-transferable, worldwide right, during the Term, to use the System for the sole purpose of accessing, reserving, and managing the System and Services. "Users" are defined as the individuals who are associated with You and who use the Platform or participate in the Services.
2.2 Ownership.
We retain all right, title and interest in and to the System and its components, outputs, and compilations, including all Intellectual Property Rights therein and any and all forms of media and materials, including but not limited to photographs, videos, audio recordings, text, graphics, images, software, data, and other multimedia elements, regardless of format, that are created, submitted, uploaded, posted, transmitted, or otherwise created or made available by the Company through the Services or You or anyone that submits or provides such content to the Company (“Content”). You agree not to challenge, object to, or otherwise interfere with Company’s exclusive right, title and interest in and to such Intellectual Property Rights and Content. To the extent Company cannot own any such rights by operation of law or otherwise, You, and anyone that uses the System or participates in the Services through You, grants Company a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use any such material provided by You, or obtained from You or anyone using the System or participating in the Services through You, in connection with Your use of the System or Services without restriction, including but not limited to Company’s right to display, edit, modify, reproduce, distribute, publish, store, or create derivative works of any such Content.
Subject to the terms and conditions of this Agreement, You hereby grant Company an irrevocable, perpetual, non-exclusive, royalty-free, non-transferable (except as expressly permitted under this Agreement), non-sublicensable (except as expressly permitted under this Agreement), worldwide license to reproduce, store, display and use any Content created through the Services and the name of any creator(s) associated with Your Content: (a) to provide the Services to You; (b) for other commercial purposes such as promoting, marketing, developing and improving Company’s products and services, testing and troubleshooting; and (c) to conduct sales and marketing to You.
Company will have the right to permit its subcontractors to exercise the foregoing rights.
Company will also have the right to permit third-party sublicensees to exercise the rights granted in herewith provided that such data is aggregated with data of other Company customers and does not identify You as the owner of such data.
2.3 Release of Name, Image, Likeness.
You hereby irrevocably permits, authorizes, grants, and licenses Company and its affiliates, successors, and assigns, and their respective licensees (e.g., advertising agencies, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them) ("Authorized Persons"), the rights to display, publicly perform, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, modify, alter, edit, adapt, exploit, sell, rent, license, otherwise use, and permit others to use your name, image, likeness, and appearance, voice, as well as biographical information, and all materials created by or on behalf of Company that incorporate any of the foregoing ("Materials") in perpetuity, in connection with the Platform, Services, and/or System, in or through databases, whether static, interactive, or otherwise, in live broadcasts or transmissions, in pre-recorded broadcasts or transmissions, in streaming video, animations, video or digital tape, DVD and/or CD-ROM, video on-demand, games, print media, and otherwise, for any purposes whatsoever, of any kind or nature anywhere in the world from now until the end of time, as well as advertising and promotional materials, press releases, the internet and other digital transmission or delivery methods, mobile applications, on any platform in connection with advertising, public relations, publicity, packaging, and promotion of the Company without further consent from or royalty, payment, or other compensation to You.
2.4 Company Marks
During the Term, subject to the terms and conditions of this Agreement, we grant to You a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use, display, and reproduce the trade name, logos, trademarks and service marks of the Company (the “Marks”), as provided by the Company to You, solely (a) as they appear on the Platform or Company’s social media accounts without modification, in Your use, display and distribution of Company Content, (b) as they appear on any marketing materials provided by the Company in Your distribution of such marketing materials, without modification, and (c) upon Company’s prior written approval, on Your website or social media to promote Your use of the Company’s Services, provided that You do not suggest any partnership or endorsement by the Company of You or Your business, products, or services. We grant no rights in the Company Marks other than those expressly granted in this section. You acknowledge our exclusive ownership of the Company Marks and agree that all goodwill arising as a result of Your use of the Company Marks will inure solely to the benefit of the Company. You agree not to take any action inconsistent with such ownership. You shall not adopt, use, or attempt to register any trademarks, trade names, or service marks that are confusingly similar to the Company Marks or in such a way as to create combination marks with the Company Marks. At our request, You will modify or discontinue any use of the Company Marks if we determine, in our sole discretion, that such use does not comply with this Agreement or our then-current trademark usage policies and guidelines. Any breach of this Section, or failure to sufficiently comply with the Company’s request for modification or discontinuance of use, in each case as determined by the Company in its sole discretion, shall be considered a material breach of this Agreement.
2.5 Linking to the Company Platform
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Company Platform for noncommercial purposes, provided that such link does not portray Company or any of our services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time.
You may link to our Company Platform, provided You do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but You must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.
3. YOUR RESPONSIBILITIES
3.1 System Access.
Only You and your Users may access the System. You will ensure that each User uses the System in accordance with applicable laws and this Agreement. You are responsible for (a) all use of the System that occurs in connection with credentials associated with Your Users, and (b) immediately reporting any suspected loss, compromise, or unauthorized use of such credentials or any other unauthorized use of or access to the System. We will not be liable for any loss or damage arising from You or Your Users’ failure to safeguard access credentials.
3.2 Connectivity.
You and Your Users are responsible for any network or internet connectivity required to access or use the System. An internet connection is required to access the System. We are not responsible for System performance issues related to internet or network connectivity problems, and any timelines related to authentication (i.e., time to provide initial or verified results) assume You and Your Users are connected to the internet when the imaging is performed.
3.3 General.
In addition to obligations identified elsewhere in this Agreement, You will provide access to such information, personnel and systems we reasonably require to support the System.
3.4 Non-Disparagement.
You agree and covenant that You will not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning Company, or its businesses, or any of its employees, officers, and existing and prospective clients, suppliers, investors, and other associated third parties.
3.5 Other Prohibited Conduct.
You agree to use our site only for lawful purposes. You shall not use the Company Platform or the Services, either directly or indirectly, to:
- Submit, transmit, promote, link, or facilitate the distribution of Content that may reasonably be considered to be obscene.
- Harass, stalk, abuse, or threaten any of the Users on or associated with the Company Platform.
- Provide any of Your personal contact information to any User on or associated with our Company Platform (and in the event that You do so, You agree that we have no liability for any results or events which occur because You did so).
- In any way that violates any applicable federal, state, local, or international law or regulation (including, but not limited to, underage drinking, the use, possession, distribution, or sale of illicit drugs, or the facilitation of any activity that involves the misuse of alcohol or drugs).
- Transmit, or procure the sending of, any advertising or promotional, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
- Impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- Engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Company Platform or Services, or which, as determined by us, may harm the Company or Users of the Company Platform, or expose them to liability.
- Submit (or cause to be posted or submitted) a chain letter or pyramid scheme.
- Submit (or cause to be posted or submitted) any unsolicited advertising, promotional materials, or other forms of solicitation to other Users, individuals or entities, or collect or harvest screen names of other Users, without permission.
- Submit (or cause to be posted or submitted) any communication or solicitation designed or intended to obtain a password of a Profile or private or financial information from any User or other person.
- Spread or distribute any viruses, bugs of any type whatsoever.
- Purchase any goods or services that You are prohibited from purchasing or possessing by any law applicable to You in Your jurisdiction. The responsibility for ensuring compliance with all such laws shall be the User’s alone. By submitting an order to purchase Services, You represent and warrant that You have the legal right to purchase such Services.
- Post, directly or indirectly, any personally identifying information about another member without their consent. Personally identifying information can include, but is not limited to, a person's full name, first name, last name, email address, profession, phone number, address and place of work.
- Use Company Platform to do any academic or corporate research without the expressed written consent of Company.
- Cross-post the same message, be it by one person or multiple people, more than 3 times in a day.
- Use Company Platforms for any fraudulent purposes.
- Collect or store personally identifying information about any other User(s) for commercial purposes without the expressed consent of those User(s) or for any unlawful purposes.
- Impersonate any person or entity, including, but not limited to, Company or Company official, employee, consultant, or otherwise, or falsely state or otherwise misrepresent Your affiliation with a person or entity.
- Additionally, You agree not to:
- Use the Company Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Company Platform, including their ability to engage in real time activities through the Company Platform.
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Company Platform that You are not authorized to access.
- Use any robot, spider, or other automatic device, process, or means to access the Company Platform for any purpose, including monitoring or copying any of the material on the Company Platform.
- Use any manual process to monitor or copy any of the material on the Company Platform, or for any other purpose not expressly authorized in these Terms and Conditions, without our prior written consent.
- Reverse engineer any aspect of the Company Platform or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Company Content, area or code of the Company Platform.
- Use any device, software, or routine that interferes with the proper working of the Company Platform.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Company Platform, the server on which the Company Platform is stored, or any server, computer, or database connected to the Company Platform.
- Attack the Company Platform via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Company Platform.
4. TERMS AND TERMINATION
4.1 Term. This Agreement is valid for the period from acceptance of this Agreement and shall continue in full force and effect in perpetuity, unless terminated earlier in accordance with this Agreement.
4.2 Termination by You. You may terminate this Agreement for a material breach by the Company that remains uncured ninety (90) days after You provide the Company with written notice thereof.
4.3 Suspension and/or Termination by Company. Company has the right to, immediately and without notice, suspend or terminate access to the System or any portions thereof, including any account or access rights of You or any of Your Users, and/or revoke and invalidate any or all Online Order Forms or requested Services, if Company deems in its sole discretion that (a) timely payment of the Fees (as defined below) has not been received by Company, (b) You or Your Users or Your Customers have materially breached any provision of the Agreement, (c) doing so is required for compliance with applicable laws, rules, regulations, or third party agreements (e.g., where the provision of the System or any component thereof is, or becomes, unlawful), or (d) doing so is necessary for the protection of Company, its customers, Users, employees, agents, business partners, Third-Party Services, business, or any other third parties. You agree that all such terminations or suspensions of Services or other rights granted herein, shall be made in Company’s sole discretion and that Company shall not be liable to You or any third party for any such termination, suspension, revocation, or invalidation. For the avoidance of doubt, any breach by You or any of Your Users or customers of any of Your representations or warranties set forth in this Agreement shall be deemed a material breach.
4.4 Effect of Termination. Upon termination of this Agreement: (a) the Services will end immediately and all rights and licenses granted herein that are not perpetual shall immediately terminate; (b) You will cease using and offering use of the System immediately; and (c) You will pay any Fees accrued prior to the effective date of termination.
4.5 Survival.
Notwithstanding the expiration or earlier termination of Services or your Platform registration or usage, or any general legal principles to the contrary, any provision of these Terms of Service that impose or contemplate continuing obligations or rights of a party will survive expiration or termination of these Terms of Service.
5. PAYMENTS
5.1 Fees.
You shall pay Company or its Third-Party Services the Fees applicable to the Services You select or request, within or outside (such as special requests) the Platform. In the event of early termination of this Agreement, You will pay any Fees then accrued and payable for Services performed through the effective date of termination. Except as otherwise expressly provided in this Agreement, all Fees are non-refundable. You shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Company may, at its option, apply money received from You against any money then due to You. You and Company shall use good faith efforts to resolve any disputed Fees.
Company pre-negotiates certain rates with Third-Party Services to facilitate the booking of reservations on your behalf for Services. Company retains service fees as compensation for facilitating reservations, which vary according to the amount and type of reservation and Services booked through Company. The rates displayed on the Platform or by quote reflecting Company pre-negotiated rates, which include the fees retained by Company. Company strives to provide accurate pricing information regarding the products and Services available on the Platform. We cannot, however, insure against pricing errors or pricing changes. Company reserves the right, at its sole discretion, to not process or cancel any bookings placed for a product or Service whose price was (1) incorrectly provided as a result of an error, or (2) changed by the Third-Party Services. If this occurs, Company will notify you by email and correct the pricing on the Platform. If additional charges apply to your booking (including but not limited to the addition of an extra traveler, resort fees or other taxes or incidentals), which charges you do not pay at the time of checkout and or payment on the Platform, you will be responsible for paying these charges directly to the Third-Party Services. Company does not guarantee that it offers best available rates for products and services available on the Platform. Company reserves the right to change the prices of Services at any time, notification of which may be sent by email or posted on the Platform. Use of the Services by You following such notification constitutes Your acceptance of any new or increased charges.
5.2 Payment and Billing Information
THE COMPANY DOES NOT RETAIN ANY OF THE PAYMENT INFORMATION PROVIDED BY YOU TO OUR THIRD-PARTY PAYMENT PROCESSOR FOR FIAT TRANSACTIONS, AND YOU HEREBY WAIVE ALL AND ANY CLAIMS OF LIABILITY AGAINST COMPANY ARISING FROM THE MISUSE OF SUCH INFORMATION BY SUCH THIRD-PARTY FIAT PAYMENT PROCESSOR. THE COMPANY SHALL NOT BE LIABLE FOR ANY PAYMENT OR SIMILAR ISSUES THAT ARISE DUE TO THE THIRD-PARTY SERVICE. THE COMPANY MAY CHANGE THE THIRD-PARTY SERVICE FROM TIME TO TIME.
You represent and warrant that if You desire to perform a transaction, You are authorized to use the designated credit or debit card and that You authorize our Third-Party Payment Processor to charge Your Payment Method for the total amount of Your requested Services, or use any other paid function of the Company Platform and use an associated amount of funds needed for that function. If there’s not sufficient amount of funds associated with Your Payment Method, Your Order may be suspended or cancelled. You must resolve any problems with Your bank before we proceed with Your Order. If You want to change or update Your Payment Method, You can do so at any time. The Company reserves the right at any time to change its billing methods.
If a payment is not successfully settled and You do not edit Your payment method information or cancel any transaction, purchases as applicable, You remain responsible for any uncollected amounts and, with respect to Your unpaid Services period, authorize us to continue charging the Payment Method associated with You, as it may be updated. You acknowledge that the amount billed may vary due to promotional offers, preferences You select, changes You make to Your requested Services or changes in applicable taxes or other charges, and You authorize Company (and Third-Party Payment Processor) to charge Your payment method for the corresponding amount.
You are responsible for all charges associated with connecting to or using our Company Platform and all amounts owed to Your internet service provider. You agree that all such charges incurred by You are entirely Your responsibility. For example, depending on Your particular location and chosen internet service provider, You may be responsible for long-distance charges and/or other communication surcharges. Any discounts and promotional pricing associated with Your Profile, will expire as applicable, except where prohibited by applicable laws.
If You believe that Your Payment Method has been erroneously billed, please notify us immediately of such error. If we do not hear from You within thirty (30) days after such billing error first appears on any statement, such fee will be deemed accepted by You for all purposes, including resolution of inquiries made by You or your bank. You release us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to us within thirty (30) days of its publication. We reserve the right to impose transaction limits on Users based upon a variety of factors including, without limitation, length of membership to the Company Platform, location, change in access information, and amount of refund requests. Please note that abuse of special offers, including creating multiple accounts to take advantage of such offers, is a violation of these Terms.
5.3 Prices on the Company Platform
All prices for the Transactions are shown in US Dollars. Applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice, including without limitation, as based on any criteria as we may establish from time to time; provided, however, that if we change the amounts or other charges associated with our various Services, we will provide advance notice of such changes by sending email, text, or by any other means deemed reasonable by us in our sole and absolute discretion.
If any such change is unacceptable to You, You may terminate Services provided by the Company. Your continued use of our Company Platform, System, or Services following the effective date of any such change shall constitute Your acceptance of any such change.
5.4 Refunds
If You place an Order and the Service(s) are discontinued, Company reserves the right to (i) cancel Your order and provide You a refund for the amount paid for the Service (if the Service is a one-time product order), or (ii) issue You a pro rata refund – a choice of said options (or none of the options at all) being at the sole and absolute discretion of Company, handled on a case-by-case basis. If Company elects, at its sole discretion to provide You with a refund, You hereby agree and acknowledge that Company does not refund any interest or transaction fees that might have been charged to You, and You agree that Company is not liable to You for such interest or fees. If you place an order through Third-Party Services, you will be bound by their refund policies, and Company will not be liable.
Users agree and understand that if You or Your Users breach any part of this Agreement, then You and Your Users are not, under any circumstances, entitled to a refund for Services purchased.
5.5 Taxes.
You shall bear all local, state and federal sales, use, gross receipts, excise, import or export, value added or similar taxes, duties, fees, assessments or levies (“Taxes”), if any, legally imposed in connection with the Fees paid hereunder. Company shall separately state on each Order Form, and You shall pay, any Taxes; provided, however, that You shall not be responsible for taxes on Company’s net income, profits, business assets, or ad valorem personal property.
5.6 Payment Processor.
To the extent You are paying by credit card, all Fees are processed by a third-party payment service (the “Payment Processor”) and You consent to the use of such service. Currently, Company uses TicketSpice.com and its affiliates as its third party payment service (e.g., card acceptance, merchant settlement, and related services) and therefore by making any payments on or through Company’s System, You agree to be bound by TicketSpice.com privacy policy (currently accessible at https://www.ticketspice.com/privacy-policy and its terms of service (currently accessible at https://www.ticketspice.com/terms-of-use) and hereby consent and authorize Company and TicketSpice.com to share any information and payment instructions You provide to the other to complete Your transactions. Company reserves the right to change its Payment Processor(s) with or without notice to You.
5.7 Remedies for Non-Payment
In addition to any other remedies available to Company, in the event that You fail to pay any Fees when due: (a) Company will have the right to immediately suspend or block its Services until full payment of such amounts is received; and (b) You shall pay a late charge equal to the lesser of 1.5% per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance, and such charge shall accrue beginning on the day after such amount is due.
5.8 Changes.
We may change our charges and billing practices at any time, either by posting notice of such change via the System or notifying You via email, provided that any such change will take effect on the following renewal date, so please check regularly for such notifications.
6. REPRESENTATIONS, WARRANTIES, AND DISCLAIMER
You represent and warrant on behalf of Yourself and Your Users that:
(a) You have full power and authority to enter into and perform this Agreement, and the person who submitted the Order form or requested Services on Your behalf has been duly authorized and empowered to enter into this Agreement;
(b)You will not violate any provision of these Terms;
(c) Your use of the System shall comply with all applicable laws, rules, and regulations;
(d) You and Your Users are at least twenty-one (21) years of age with valid ID:
(e) You and Your Users will not submit any false or misleading images to the Platform.
For the avoidance of doubt, a breach of this Section 6.1 shall be deemed a material breach.
7. INDEMNIFICATION
7.1 Your Indemnification
You, at Your own expense, will indemnify, defend and hold harmless Company, its Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the “Company Indemnitees”) from and against any Claim, including but not limited to any losses arising therefrom, brought by any third party against any Company Indemnitee to the extent that such Claim is based on, or arises out of: (a) any Feedback that You provide; (b) any breach or purported breach of Your obligations, representations and/or warranties under this Agreement or any contract with any provider of Third-Party Services under which You are bound; or (c) the fraud, gross negligence or willful misconduct of You, Authorized Users or Your employees or subcontractors.
7.2 Indemnification Procedures
Your obligations (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless the Company and its Affiliates, and their respective directors, officers, employees, representatives and agents (each, an “Indemnitee”) shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
8. SYSTEM INFORMATION.
We collect information and data related to performance of the System, including response times, image processing times, usage statistics, and activity logs (collectively, “Performance Data”). Performance Data does not include any personally identifiable information or Licensee-specific output resulting from the use of the System (“Licensee Output”) but may include aggregated or de-identified information derived from Licensee Output that would not be reasonably expected to identify Licensee or one of its Users. Performance Data is used to contribute to analytical models used by Company, to provide our services, and to operate and improve the System and is Company’s property.
9. GENERAL PROVISIONS
9.1 Assignment.
You may not assign this Agreement without Company’s prior written consent. Any attempted assignment in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns. Company may freely assign this Agreement.
9.2 Entire Agreement; Amendment.
This Agreement, along with any mutually agreed upon amendments and addenda, (a) is the Parties’ entire understanding regarding its subject matter, and (b) supersedes all other oral or written agreements of the Parties as to such subject matter. We may update this Agreement by modifying this web page, and will (x) indicate the date of any such updates above and (y) email You at the email address then on file to notify You of such update. You will be deemed to have accepted such modifications if You continue to access the System or do not provide a termination notice within fifteen (15) days’ of release of the updated Agreement. In the event You provide such a notice, Company shall have the option, in its sole discretion, of reverting the terms to the previously accepted version of the Agreement (as applicable to You only), in which case Your termination notice would be void. Referenced policies and procedures may be changed at any time in Company’s sole discretion. Any terms and conditions in or referenced by an invoice, purchase order or other such document issued pursuant to this Agreement, other than the Order Form, will have no force or effect.
9.3 Feedback
You hereby grant Company an unrestricted, perpetual, irrevocable, royalty-free, worldwide right and license to use all feedback, suggestions, improvements, and recommendations You or Your Users provide regarding the System (“Feedback”), and You acknowledge that Company may use the Feedback in its sole discretion without any notice or other obligation to You. Company expects You to maintain a high level of integrity with respect to Feedback posted through the Website, and You agree: (i) to base any rating or review You post only on Your first-hand experience with the applicable product or recipe; (ii) You will not provide a rating or review for any product, recipe or service with respect to which You have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) You will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) Your review will comply with these Terms. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Feedback without notice.
9.4 Notices
A communication intended to have legal effect under this Agreement (a “notice”) must be written and delivered to (a) us at the address set forth at 340 SE 3rd St., Apt 1905, Miami, FL 33131, as may be amended from time to time, or (b) You at the email address identified on the Order Form, and will be effective on receipt or when delivery is refused. Operational communications, including changing a Party’s notice address, may be delivered via email. You are responsible for keeping Your contact information up to date.
9.5 Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
9.6 Data Security and Privacy
Company shall use commercially reasonable efforts to maintain a data security program that includes physical, technical, and managerial procedures that are up-to-date and generally accepted in Company’s industry that are designed to prevent unauthorized use or disclosure of Your data stored in the Services. Company will have the right to suspend Your access to the Services on an emergency basis: (a) in the event that Company detects any actual or apparent theft, unauthorized access or use of the Services, or other malicious activity by You or any third party; and/or (b) to maintain data integrity within the Services. The parties shall each comply with all applicable privacy laws and regulations relating to the protection of personal data. You hereby consent to Company’s use of any personal information that You provide to the Company Platform: (i) for the purpose of providing the Services to You; (ii) to conduct sales and marketing to You; and (iii) in any additional manner described in the Company Privacy Policy governing the Services. Please refer to the Company Privacy Policy for information about how we collect, use and share personal information about You.
9.7 Independent Contractors.
Company and Licensee are independent contractors, and this Agreement does not create a joint venture, partnership, principal-agent or employment relationship between them. Neither Party will have, or represent to a third party that it has, the authority to act for or bind the other Party.
9.8 No Third Party Beneficiaries.
This Agreement is solely for the benefit of the Parties hereto.
9.9 Attribution.
Company may identify Licensee as a client on its webpage and in standard marketing materials.
9.10 Severability.
Any provision of this Agreement found invalid or unenforceable will be restated to reflect the original intent as closely as possible in accordance with applicable law. The invalidity or unenforceability of any provision herein will not affect the validity or enforceability of any other provisions.
9.11 Force Majeure.
Neither Party will be liable for a failure to fulfill its obligations (excluding payment obligations) due to causes beyond its reasonable control, including acts of God, earthquake, fire, hurricane, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war, and epidemics, that cannot be mitigated through the exercise of due care.
9.12 Governing Law and Venue.
This Agreement, including its formation, will be governed by and interpreted according to the laws of the State of Florida without regard to its conflicts of laws provisions that would require a different result. Each Party agrees that any and all causes of action between the Parties arising from or in relation to this Agreement shall be brought exclusively in the state and federal courts located in Miami-Dade County, Florida.
9.13 Disclaimers
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DOCUMENTATION WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY CONTENT GENERATED BY THE SERVICES WILL BE ACCURATE, COMPLETE OR RELIABLE, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ANY DEFECTS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED. WHILE COMPANY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD COMPANY RESPONSIBLE FOR ANY BREACH OF SECURITY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
YOUR USE OF THE COMPANY PLATFORM AND SERVICES IS AT YOUR OWN RISK. THE COMPANY PLATFORM, ITS CONTENT, AND ANY SERVICES OBTAINED THROUGH THE COMPANY PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE COMPANY PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE COMPANY PLATFORM, ITS CONTENT, OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE COMPANY PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE COMPANY PLATFORM OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE COMPANY PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR COMPANY PLATFORM OR SERVICE YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
9.14 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY, NOR ITS AFFILIATES OR LICENSORS SHALL BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES OR DAMAGES FOR LOSS OF USE OR LOSS OF DATA. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS UNDER THIS AGREEMENT EXCEED THE GREATER OF: (A) US$100; OR (B) TOTAL FEES PAID OR PAYABLE TO COMPANY HEREUNDER THE RELEVANT ORDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
COMPANY WILL NOT BE LIABLE, WITHOUT LIMITATION, FOR ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM (A) DATA BEING "BRUTEFORCED", (B) SERVER FAILURE OR DATA LOSS, (C) FORGOTTEN PASSWORDS, (D) CORRUPTED FILES, (E) INCORRECTLY CONSTRUCTED TRANSACTIONS OR MISTYPED ADDRESSES, OR (F) "PHISHING", VIRUSES, THIRD-PARTY ATTACKS OR ANY OTHER UNAUTHORIZED THIRD-PARTY ACTIVITIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE COMPANY PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE COMPANY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, 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.”
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT AFFECT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAW/JURISDICTION.
9.15 BINDING ARBITRATION:
NOTICE: PLEASE READ THIS SECTION OF THESE RULES CAREFULLY. IT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHTS TO TRY CLAIMS IN COURT BEFORE A JUDGE OR JURY AND THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION.
MANDATORY INFORMATION DISPUTE RESOLUTION: If You or Company have a Claim (defined below), You and Company agree to make a good faith effort to resolve it informally prior to initiating a formal arbitration proceeding. The party that intends to initiate an arbitration proceeding must first send a notice to the other party that describes the Claim. The notice must include the initiating party’s name and contact information (address, telephone number, and email address) and a detailed description of (1) the nature and basis of the Claim and (2) the nature and basis of the relief sought, with a detailed calculation. Your notice shall be sent by mail to 340 SE 3rd St., Apt 1905, Miami, FL 33131, Attn: Legal Department. You must personally sign the notice. Company’ notice to You shall be sent to the most recent contact information we have on file for You. If requested by the party that receives the notice, the other party must personally participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the Claim. If the Claim is not resolved within sixty (60) days after receipt of the notice (which period can be extended by agreement of You and us), You or Company may commence an arbitration proceeding consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing a demand for arbitration. The statute of limitations and any filing fee deadlines for a formal arbitration proceeding shall be tolled while the parties engage in this informal dispute resolution process. If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, it may be decided by a court at either party’s election, and any arbitration proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
AGREEMENT TO ARBITRATE: If We are unable to resolve a Claim through the mandatory informal dispute resolution process, You and Company agree that, except as set forth below, all Claims between You and us will be resolved entirely through the binding individual arbitration process set forth in this Section. For purposes of this Section, “Company,” “we,” “our,” and “us” include Company and its employees, officers, directors, parents, agents, controlling persons, subsidiaries, affiliates, predecessors, acquired entities, successors, and assigns.
CLAIMS: “Claims” subject to this Section include all of the following: (1) claims relating to or arising out of these Rules or any prior or later versions of these Rules, as well as any changes to the terms of these Rules; (2) claims relating to or arising out of any aspect of any relationship between You and us; (3) claims relating to or arising out of Your access of, use of, or any transactions through, by, or using the Company Property, including receipt of any advertising, marketing, or other communications from Company; and (4) claims relating to the interpretation, scope, applicability, or enforceability of these Rules or this Section except as set forth in Section 18(b), Section 18(k), and Section 18(l). Except as provided below, (1) claims are subject to arbitration whether they are based in contract, tort, federal or state statute, constitution, regulation, or any other legal theory, or whether they seek legal or equitable remedies; (2) all claims are subject to arbitration whether they arose in the past, may currently exist, or may arise in the future; and (3) claims include claims or disputes that arose before the parties entered into these Rules or after termination of these Rules.
CLAIMS NOT COVERED BY ARBITRATION: Claims filed by You or by us in a small claims court are not subject to arbitration, so long as the dispute remains in such court and advances only an individual claim for relief. Claims filed by You or us in court to enjoin infringement or other misuse of intellectual property rights are also not subject to arbitration.
COMMENCING AN ARBITRATION: Except as set forth in this Section 9.15, unless the parties agree to select a different arbitration administrator, the arbitration shall be administered by the American Arbitration Association (“AAA“) as follows: under AAA’s Commercial Rules for commercial disputes and under AAA’s Consumer Arbitration Rules for consumers with non-commercial disputes, except as modified by this Section. AAA’s rules may be obtained from www.adr.org or 1-800-778-7879 (toll-free). If AAA is for any reason unable to serve and the parties are unable to agree on an alternative arbitration administrator, then a court of competent jurisdiction shall appoint an arbitration administrator. To commence an arbitration proceeding, You or Company must send a personally signed demand for arbitration that describes (1) the nature and basis of the Claim(s), and (2) the nature and basis of the relief sought, including a detailed calculation, along with a certification that You or we are party to this Section and completed the informal dispute resolution process referenced above. Your notice shall be sent to 340 SE 3rd St., Apt 1905, Miami, FL 33131, Attn: Legal Department. Company’ notice shall be sent to the most recent contact information we have on file for You. You or Company must also contact AAA or chosen arbitration administrator and follow its appropriate procedures to commence the arbitration.
ARBITRATION PROCEDURE:
Unless You and We agree otherwise in writing, the arbitration shall be decided by a single, neutral arbitrator, who shall be a retired judge or a lawyer with at least ten years of experience, selected in accordance with the chosen arbitration administrator’s rules.
The arbitrator will decide the Claim or Claims in accordance with the terms these Rules and applicable substantive law, including the FAA, and applicable statutes of limitation. The arbitrator shall honor claims of privilege recognized at law. Except as provided in this Section 9.15, the arbitrator may award damages or other relief (including injunctive relief) available to the individual claimant under applicable law.
The arbitrator will take reasonable steps to protect proprietary or confidential information. Any arbitration hearing shall take place in the county in which You reside, unless the parties agree in writing to a different location or the arbitrator so orders. If all Claims are for $10,000 or less, You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing in accordance with the arbitration administrator’s rules. You and a Company representative shall personally appear (with counsel if You and we are represented) at an initial telephone conference with a case manager before an arbitrator is appointed and at a hearing should one be scheduled by the arbitrator.
At Your or our request, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and binding except that any party may appeal any award relating to a Claim for more than $100,000 or for injunctive relief to a three-arbitrator panel appointed by the arbitration administrator, which will reconsider de novo any aspect of the appealed award. The panel’s decision will be final and binding. In either event, You or we may seek to have the award vacated or confirmed and entered as a judgment in any court having jurisdiction.
ARBITRATION COSTS: Payment of all filing, administration, and arbitrator fees will be governed by the applicable AAA rules as set forth above or, if a different arbitration administrator is selected, its rules. If You are a consumer with a non-commercial dispute, we will pay any filing, administration, or arbitrator fees the arbitration administrator requires You to pay if, in a writing signed by You: (1) You claim to be unable to afford it; and (2) You demonstrate that You sought, but were unable to obtain, a waiver of that fee from the arbitration administrator. To the extent allowed by applicable law and our agreements, the arbitrator may award arbitration costs and attorneys’ fees to the prevailing party.
JURY WAIVER AND LIMITATION OF RIGHTS: You and We agree that, by agreeing to arbitrate any Claims, the parties are each waiving the right to a trial by jury or a trial before a judge in court (except for matters that may be taken to a court pursuant to this Section). You and we acknowledge that arbitration will limit our legal rights, including the right to participate in a class action, the right to a jury trial, the right to conduct full discovery, and the right to appeal.
CLASS ACTION AND REPRESENTATIVE ACTION WAIVER: You and We agree that each may bring Claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless mutually agreed to by You and us, the claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration. The arbitrator shall have no authority to conduct any class, private attorney general or other representative proceeding.
PUBLIC INJUNCTIVE RELIEF WAIVER: Neither You nor We will have the right to seek public injunctive relief as a remedy for any Claim against one another (a “Public Injunctive Relief Request”) in arbitration, if such a waiver is permitted by the FAA. If such a waiver is deemed unenforceable, You and we agree that the Public Injunctive Relief Request shall be severed from any other Claims and/or remedies You have. The Public Injunctive Relief Request must be adjudicated by a court after all Your other Claims to be decided in arbitration under this Section are resolved in arbitration. The validity, enforceability, and effect of this Section 9.15 shall be determined exclusively by a court, and not by any arbitration administrator or arbitrator.
ADDITIONAL PROCEDURES FOR MASS ARBITRATION:
If twenty-five (25) or more similar claims of consumers with non-commercial disputes are asserted against Company by the same or coordinated counsel or are otherwise coordinated (and Your Claim is one such claim), You understand and agree that the resolution of Your Claim might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules.
Counsel for the claimants and counsel for Company shall each select fifteen (15) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the initial bellwether process.
If the parties are unable to resolve the remaining cases after the conclusion of the initial thirty (30) proceedings, the parties shall participate in a global mediation session before a retired judge, and Company shall pay the mediator’s fee. If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of this staged process.
If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired judge, and Company shall pay the mediator’s fee. If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by the AAA in staged sets, until all the claims included in these coordinated filings, including Your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, Company agrees to participate in a global mediation session should Your counsel request it in an effort to resolve all remaining claims.
A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator unless the parties agree otherwise. The statute of limitations and any filing fee deadlines shall be tolled for Claims subject to this Section 9.15 from the time the first cases are selected for the initial bellwether process until the time Your case is selected, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have the authority to enforce this paragraph by enjoining the mass filing or prosecution of arbitration demands against Company. Should a court of competent jurisdiction decline to enjoin this Section 9.15, You and we agree that Your and our counsel shall engage in good faith discussions with the assistance of an arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees.
9.16 Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE WEBSITE, OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
9.17 Electronic Communications
The communications between You and Company use electronic means, whether You visit the Company Platform or send Company e-mails, or whether Company posts notices on the Company Platform or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms, agreements, notices, disclosures, and other communications and documents that Company provides to You electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing." The foregoing sentence does not affect Your statutory rights.
9.18 Waiver.
No waiver by Company of any term or condition set out in these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Company to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms and Conditions will continue in full force and effect. These Terms and Conditions and all the documents incorporated herein (such as our Privacy Policy) constitute the sole and entire agreement between You and Company regarding the Website and Your order, receipt and use of Service and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You without the prior written consent of Company. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
9.19 Headings and Interpretation.
Headings are for reference only and do not affect the Parties’ obligations. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holidays.
9.20 Changes to these Terms
We may update our Terms from time to time. If we make material changes to these Terms we will notify You by posting the new Terms on this page. We will let You know via email and/or a prominent notice on our Company Platform, prior to the change becoming effective and update the "Last Modified" date at the top of these Terms. You are responsible for ensuring we have an up-to-date active and deliverable email address for You, and for periodically visiting our Company Platform and these Terms to check for any changes. You are advised to review these Terms frequently for any changes. Changes to these Terms are effective when they are posted on this page.
Contact Us
All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Complaints section of these Terms in the manner and by the means set out therein.
All other feedback, comments, requests for technical support, and other communications relating to the Company Platform or these Terms should be directed to:
Royal Society Hospitality, LLC
340 SE 3rd St., Apt 1905
Miami, FL 33131
[email protected]