VENUES NYC SERVICES AGREEMENT
Last Updated: November 18, 2022
Venues NYC has developed an innovative online platform ("Platform"), available at www.venuesnyc.com ("Website"), that connects property owners, lessees, or their authorized agents ("Venue Providers") who have indoor or outdoor rooms, buildings, sites, or other areas available for event rentals ("Venues"), with third parties seeking to rent Venues ("Event Planners") to host events ("Events"). In this Venues NYC Services Agreement (the "Agreement"), we refer to these services as our "Services."
When this Agreement refers to "you" or a "User," it refers to the person who or entity that registered with Venues NYC as a Venue Provider and/or Event Planner. When this Agreement refers to "Venues NYC," "we," "us," or "our," it refers to VenuesNYC.com LLC, which is the entity with whom you are contracting. If you want to contact us for any reason, please use the following contact information: email@example.com
By signing up for an account with us ("Account"), listing or reserving a Venue for Events, accessing, interacting, or otherwise using our Platform or Services in any way, including all associated features and functionalities, as well as other products and services that may be developed from time to time, you are hereby entering into this Venues NYC Services Agreement with us, which is a binding contract. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OR ACCESSING OUR PLATFORM.
PLEASE ALSO BE AWARE THAT Section 5 of this Agreement contains a collective, class, and representative action and jury trial waiver, and mandatory and binding agreement to arbitrate. You should read these provisions carefully as they govern how disputes involving you, us, and other Users are resolved. You have the choice to opt out of some of these provisions, but must do so within the time frame specified in Section 5 of this Agreement. If you do not choose to opt out of these provisions in accordance with Section 5 of this Agreement, then to the maximum extent permitted by applicable law, you will be deemed to have irrevocably waived your right to participate as a plaintiff, claimant, or class member in any collective, class, or representative action, whether in court or arbitration.
Section 1. General Terms that Apply to all Users of Our Services
1.1 How Our Services Work
As mentioned above, our Services include connecting Venue Providers and Event Planners through the Platform. Event Planners can post "Listings" on our Platform, which are organized as web or app pages that display:
- Available times and dates for Events;
- Pictures of the Venue;
- Per-hour prices for Venue reservations ("Reservations");
- Prices for and descriptions of additional goods or services for Events ("Additional Services"), which Additional Services must be purchased, processed, and paid for through our Platform;
- Descriptions of the Venue and scope of use of a Venue (including, without limitation, whether alcohol may be sold or consumed onsite);
- Additional rules or requirements of the Venue or Venue Provider ("Rules") applicable to Venues and Events;
- Information concerning Surveillance Devices (as defined below) in or about the Venue; and
- Any other material terms that will apply to a Reservation or use of a Venue, which may be set by the Venue Provider in its discretion.
Event Planners can use our Platform to view listed Venues, communicate with Venue Providers, and make Reservations for listed Venues. Reservations constitute binding contracts between Event Planners and Venue Providers and are created when a Venue Provider accepts an Event Organizer's Reservation. Venues NYC is not a party to Reservations, not is it an agent or broker, except only with respect to collecting and remitting payments among Users as set forth in this Agreement.
1.2 Criteria You Must Meet
In order to access the Platform, create an Account, and make Listings or Reservations, you represent and warrant that you meet each of the following "Eligibility Criteria":
- You are the legal age of majority in the jurisdiction in which you reside;
- You are the legal age of majority in the jurisdiction where the Venue is located;
- You are 21 years of age or older if reserving a Venue where alcohol will be sold or served;
- You have a valid email address and phone number;
- You or your business has a credit card, debit card, bank account or other form of making or receiving payment through our Platform;
- You have not been suspended, terminated, or removed from use of our Services at any time in the past; and
- You are not a resident of any country to which the U.S. has embargoed goods or which is subject to other applicable U.S. trade sanctions, such as Cuba, Libya, North Korea, Iran, Syria, and the Crimea region of Ukraine.
By making an Account with us or by using or accessing our Platform or Services, you hereby represent and warrant that you currently meet each of the foregoing Eligibility Requirements and will meet the Eligibility Requirements at all relevant times.
Either Venues NYC or a User with whom you contract may, but shall not be obligated to, require that you provide proof that you meet the Eligibility Requirements, including, without limitation, proof of residency and forms of government-issued identification such as a driver's license or passport. If you do not provide these forms of verification, or if you misrepresent any information concerning your Eligibility Criteria, you may be restricted or prohibited from making a Reservation or using or accessing our Platform. Do not use our Platform or Services if you do not meet the Eligibility Requirements.
1.3 You Are Solely Responsible for Event Planning
You acknowledge that we do not do any of the following activities:
- Own, lease, operate, or control Venues;
- Make Listings or Reservations;
- Endorse any User, Venue, Listing, or other third party or its goods or services;
- Offer, sell, or provide insurance for Events, Venues, Venue Providers, Event Planners, or in any other circumstance or to any person.
You are solely responsible for determining what Services you decide to use, and who you want to interact with. We are not responsible for, nor do we make any representations, warranties, guarantees, or promises concerning the content or Services posted or provided by Users, even if we verify information (such as Eligibility Criteria) in certain contexts. You are solely responsible for procuring insurance as may be required by law or that you deem desirable for an Event, Venue, Venue Provider, or Event Planner.
1.4 How We Process Payment
We use Stripe as our payment processor. All listed prices are in United States dollars. We do not accept foreign currencies or digital currencies (such as cryptocurrency). Your use of any payment-processing function in the Platform is subject to Stripe's terms, conditions, and agreements, and you agree to be bound by Stripe's terms and conditions and comply with any obligation you may have with Stripe.
When Event Planners book a Reservation, they will make payments using payment methods saved in their Account and through our Platform. If monies are refunded after a Venue Provider has been paid, those refunds will be processed through our Platform. Notwithstanding the fact that we are not a party to Reservations, each User hereby appoints us as its payment collection agent for the limited purpose of accepting payment from Event Planners. Once a User who makes a payment processes that payment in the Platform, that User's obligation is extinguished and we will be responsible for remitting payment to the other contracting user. In that case, the intended recipient of those funds will have no additional recourse against the paying User.
Section 2. Event Planner Terms and Conditions
2.1 How to Request a Reservation
Event Planners must have an Account to request or make Reservations. To request a Reservation ("Reservation Request"), please follow the applicable steps outlined in a Listing on our Platform. You may add Additional Services to the extent offered in a Listing by following the steps outlined in the Listing.
PLEASE NOTE that some Venue Providers may not allow you to add, modify, or cancel Additional Services once a Reservation Request is made. In certain cases, you may be able to provide additional information to Venue Providers to make a Reservation Request, such as your age if booking an Event where alcohol will be purchased or served.
2.2 Fees for Reservations
Each Listing shows the applicable per-hour fee to use a Venue ("Venue Fees"), as well as the costs of any Additional Services that the Venue Provider may offer ("Additional Fees"). In this Agreement, we will refer to all Venue Fees and Additional Fees as "Reservation Fees." Depending on the terms of a Listing, you may be required to pay all Reservation Fees when making a Reservation Request or upon Acceptance (as defined below) or may be required to pay a deposit of only a portion of the Reservation Fees ("Deposit") at such time. If a Deposit is made, the balance of the Reservation Fees shall be paid in accordance with the Reservation and, in all cases, before the Event. If the Event Host wishes to add Additional Services after a Reservation is made, such Additional Services shall be added and paid through the Platform.
2.3 Acceptance of Reservations
Your Reservation Request will become a binding contractual obligation when it is accepted by the Venue Provider ("Acceptance"). You will receive notice both in your Account and by email of the Acceptance. Prior to Acceptance, you may freely modify or cancel a Reservation Request. Upon Acceptance, you will be granted a limited, temporary, and (subject to the terms of this Agreement) revocable license and right to enter, occupy, and use the Venue for the Event at the time, date, and scope specified in the Reservation and in strict compliance with this Agreement, Rules (if applicable), and applicable law. Your rights to use a Venue constitute a license, and not a lease or sublease. Venue Providers shall retain the right to enter the Venue in accordance with the Reservation or at any time during an emergency.
2.4 Capacity, Alcohol, and Conduct of Invitees
Reservations may specify the maximum number of your guests, invitees, attendees, employees, vendors, or agents ("Invitees") that may enter a Venue during an Event ("Capacity"). You may not exceed the Capacity of any Event.
Certain Venues may allow alcoholic beverages to be sold or consumed by persons of a legal drinking age. You agree that any person purchasing or consuming alcohol at these Venues will be at least the legal drinking age and may be subject to age verification requirements. We do not sell alcohol and are not responsible for the conduct of you, your Invitees, or any other persons while under the influence of alcohol or other substances.
You are solely responsible for your and your Invitees' conduct before, during, and after an Event. This means that you are solely responsible for ensuring that you and your Invitees comply with this Agreement, the Reservation, Rules (if applicable), and any applicable laws at all times. Failure to ensure such compliance can be grounds for a Venue Provider to terminate an Event or Reservation.
2.5 End-Times of Events
You agree to leave, and cause any of your Invitees to leave the Venue at or before the end-time of your Event ("End-Time"). At the End-Time, you will return the Venue to the Venue Provider in substantially the condition as provided to you and, unless otherwise agreed to, in broom clean condition. Your license to use the Venue expires at the End-Time, and the Venue Provider will be entitled to use all lawful means required to cause you and your Invitees to Leave. If you and/or your Invitees fail to leave the Venue by the End-Time, you will pay a per-hour charge at the same rate as the Venue Fee for each hour you remain past the End-Time, as well as any associated taxes. You are solely responsible for damage that you or your Invitees cause to a Venue or any property in a Venue.
Venue Providers may charge a separate cleaning fee as an Additional Service. Even if Venue Providers do not charge a separate cleaning fee, you will be assessed an additional cleaning fee if you fail to return the Venue in the condition required by this Agreement or a Reservation. If you or your Invitees stay at a Venue past the End-Time, cause damage, or incur cleaning fees in accordance with this Section 2.5, you hereby agree that Venues NYC can charge your credit card, debit card, or other payment method on file in your Account. If there is no payment method on file in the Platform or a charge is declined, you will promptly pay any due amount within three (3) business days after receipt of notice from Venues NYC. Your failure to pay these amounts will entitle us to suspend access to the Platform and terminate any scheduled Events without refund.
2.6 How You Can Cancel or Modify a Reservation
As mentioned above, you are free to withdraw, cancel, or modify a Reservation Request at any time. We offer four different cancellation and refund options for Event Planners once a Reservation is accepted:
- Very Flexible: Event Planners may cancel a booking up to 24 hours before event start and will be fully refunded. Cancellations made later will not be refunded.'
- Flexible: Event Planners may cancel a booking up to 7 days before event start and will be full refunded. Cancellations made later will be refunded 50% of the booking, up to 24 hours before the event start. Cancellations made later will not be refunded.'
- Standard 30 day: Event Planners may cancel a booking up to 30 days before event start and will be fully refunded. Cancellations made later will be refunded 50% of the booking, up to 14 days before the event start. Cancellations made later will not be refunded.'
- Standard 90 day: Event Planners may cancel a booking up to 90 days before event start and will be fully refunded. Cancellations made later will be refunded 50% of the booking, up to 14 days before the event start. Cancellations made later will not be refunded.'
All requests to cancel or modify a Reservation (including, without limitation, by requesting Additional Services) must be made on the Platform. Please note that requests to modify a Reservation are subject to the sole discretion of the Venue Provider.
2.7 How Venue Providers May Cancel Reservations
Venue Providers may cancel or terminate Events and/or Reservations at any time, including during an Event, with or without advance notice or refunding Reservation Fees, if the Venue Provider reasonably determines that:
- You have materially misrepresented the scope or purpose of the proposed Event or Reservation or any details therein (including the Eligibility Requirements);
- The number of Invitees exceeds the Capacity, including during an Event;
- The scope of the Event is different from the scope of the Reservation;
- There is any safety or security hazard at the Event that could cause injury or damage to persons or property, whether or not caused by you or your Invitees;
- You or your Invitees misrepresent your age(s) in order to purchase alcohol;
- You or your Invitees possess, sell, consume, or distribute, as may be applicable, controlled substances, illegal substances, contraband, weapons, or hazardous chemicals, substances, or materials in or around the Venue;
- The Venue Provider is directed by any law, rule, regulation, or governmental authority (including, without limitation, a law enforcement or public health agency) to do so; or
- You or your Invitees engage in any conduct that creates or is reasonably likely to create a nuisance or public health hazard (including with respect to noise or odor).
Section 3. Venue Provider Terms and Conditions
3.1 How You Can Create Listings
Venue Providers must have an Account to make Listings and accept Reservations. When you make a Listing, you must identify each category of information specified in Section 1.1. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU MUST DISCLOSE, IN EACH LISTING, THE LOCATIONS OF ANY VIDEO CAMERAS, RECORDING DEVICES, OR OTHER SURVEILLANCE DEVICES (COLLECTIVELY, "SURVEILLANCE DEVICES") THAT ARE OR WILL BE INSTALLED IN OR AROUND A VENUE, WHETHER OR NOT THEY ARE ON OR RECORDING, AS WELL AS YOUR POLICIES FOR MONITORING AND RECORDING AN EVENT, EVENT PLANNER, AND/OR ITS INVITEES, AS WELL AS YOUR POLICY FOR RETENTION OF SURVEILLANCE DEVICE DATA, INFORMATION, AND RECORDINGS.
3.2 Title or Right to Occupy and Use Venues
You hereby represent, warrant, and covenant that you have and all times relevant hereto will have legal title or the right to occupy Venues for which you make Listings, and that there is no agreement, covenant, or restriction in place that would prohibit or restrict your right to allow an Event Planner to use your Venue (such as a lease agreement that does not permit the hosting of Events at the Venue).
You further hereby agree that all content in your Listings will be complete, accurate and truthful, both at the time of the Listing and any Event. Any Rules in a Listing or Reservation must be consistent with the terms of this Agreement, applicable law, and any agreement you may have with any third party. For example, you may not permit alcohol to be sold or served if your lease agreement does not permit the consumption of alcohol onsite.
3.3 How to Accept Reservations
You can accept Reservations through our Platform. Upon Acceptance (defined above), Reservations will be binding contracts between you and the Event Planner. Upon Acceptance, you will be unable to modify or change any Reservation Fees.
3.4 Venue Terms
You are solely responsible for ensuring the following conditions are met at all relevant times:
- Venues must be in the same condition as described or warranted in a Listing at the time of an Event. You agree to maintain the Venue at your sole cost and expense, with facilities and services (including water, HVAC, plumbing, electrical, and restroom facilities) in good working order, and in clean, safe, and sanitary conditions.
- If you are required to cancel an Event due to conditions in the Venue that are not attributable to an Event Planner or their Invitees, you agree to refund all Reservation Fees to the Event Planner.
- Venues are not permitted to have any Surveillance Devices except as disclosed in Listings. In no case may Surveillance Devices be placed in restrooms, changing areas, bedrooms, or other similar areas with a Venue, whether or not disclosed in a Listing. You shall be solely responsible for compliance with all applicable laws concerning the use of Surveillance Devices.
- You shall not cause or permit alcoholic beverages to be sold or consumed at the Venue unless all required licenses, permits, or other forms of government authorization are held and in good standing. You shall be solely responsible for compliance with all applicable laws governing the sales or consumption of alcohol at the Venue.
- You acknowledge and agree that Event Planners and their Invitees may take photographs, record films, and make or record other audiovisual recordings in the Venues and during Events, including of any features or architecture in a Venue. You further grant Event Planners and their Invitees a royalty-free, worldwide, non-exclusive, perpetual license and right to use, publicly display or perform, copy, transmit, distribute, modify, license, sublicense, sell, transfer, and assign such recordings, whether or not they identify you, the Venue, or the Event.
- You shall ensure that the Venue and any use of the Venue complies with all applicable laws, the Rules, and this Agreement. We make no representations or warranties concerning the use of the Venue by any person. We shall not be responsible for any loss, theft, or damage to the Venue or any personal property therein, or injury to any person at an Event or the Venue.
3.5 The Fees we Collect
We charge Venue Providers a fee of fifteen percent (15%) of all Reservation Fees ("Venues NYC Fee"). When we collect payment from Event Planners, we will deduct the Venues NYC Fee prior to distribution of the balance of the Reservation Fees to you. If a refund is issued to an Event Planner after we collect our Venues NYC Fee as required by this Agreement, we will be responsible for refunding the Venues NYC Fee to the Event Planner.
3.6 You are Responsible for Collecting, Reporting, and Paying Taxes
You are solely responsible for collection, reporting, and payment of all taxes, levies, penalties, and other costs imposed by any taxing authority or government agency related to Listing or Reservation. If any taxing authority demands that we pay taxes on your behalf, you agree to immediately reimburse us for the full amount of taxes paid on your behalf.
Section 4. General Terms
4.1 Intellectual Property and Content Matters
All contents on our Platform are copyright © 2022 VenuesNYC.com LLC. All rights are reserved. All of our trademarks, logos, brand names, service marks, trade dress, trade names, copyrights, patents, domain names, trade secrets, text, graphics, images, music, software, audio, video, works of authorship of any kind, information or other materials that are posted, generated, provided or otherwise made available through or embedded in the Platform, and all other proprietary rights (collectively, "Intellectual Property") whether registered or not, are our property or are licensed to us. Venues NYC and its licensors exclusively own all right, title, and interest in and to the Platform, including all Intellectual Property. For purposes of this Agreement, the term ""Content" means any product, service, image, photograph, video, file, .MP3, .GIF, information, or any other content in any other format, whether now existing or hereinafter developed, that is displayed, published, visible, linked from, referred to in, sold, offered, or transferred from, or otherwise posted on or through the Platform or by us. We grant you a revocable limited, personal, worldwide, royalty-free, non-assignable, non-transferrable, non-sublicensable, and non-exclusive license to use the Platform, access the Content, and use the software embedded into the Platform only as authorized by this Agreement. We do not grant you, and nothing on the Platform should be understood as granting you a license to use, copy, modify, reproduce, publicly perform or display, use, or otherwise exploit for commercial purposes any part of the Platform or our Content or Intellectual Property. You must obtain our prior and express written permission to modify, create derivative works of, copy, edit, sell, lease, transmit, display, publish, or post any part of the Platform or our Content or Intellectual Property.
4.2 User Accounts
4.3 How we Treat User Content
User content consists of any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided, or otherwise made available through the Platform that users (including Users) provide to be made available through the Platform (collectively, "User Content"). Venues NYC does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit your User Content. By making any User Content available through our Platform you hereby grant to Venues NYC an irrevocable, non-exclusive, transferable, assignable, sub-licensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, and distribute your User Content in connection with operating and providing our Platform to you and to other users.
4.4 How You Communicate with Other Users
Once you create an Account, you will be able to communicate with other Users on the Platform. Do not send other Users messages spam, share personal or sensitive information with other Users, or transmit other User Content or engage in other conduct that is prohibited by this Agreement. We reserve the right, but not the obligation, to remove, suspend, or delete Accounts or User Communications for violations of this Agreement.
4.5 You Must Comply with Applicable Laws
You agree, at all times while using our Platform or Services, as well as during an Event or at a Venue, to strictly comply with, and cause all of your Invitees to strictly comply with, all applicable laws, rules, regulations, orders, ordinances, codes, covenants, restrictions, and other agreements.
4.6 Prohibited Conduct
You agree not to do any of the following:
- Circumvent, bypass, or attempt to circumvent or bypass our Platform, directly or indirectly, except with the prior express written consent of Venues NYC, for the purposes of soliciting business, Listings, or Reservations from any person who has made a Listing or Reservation on our Platform or that you have been introduced to through our Platform.
- Post, upload, publish, submit or transmit any User Content that: (a) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, proprietary rights, confidentiality rights, or rights of publicity or privacy; (b) violates, or encourages any conduct that would violate, any applicable law; (c) is fraudulent, false, misleading, untrue, or deceptive; (d) is defamatory, threatening, harassing, vulgar, obscene, or offensive; (e) promotes violence, discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; or (f) promotes illegal or harmful activities or substances;
- Use, display, or publish any individual element(s) within the Platform; the Venues NYC name, Intellectual Property, or other proprietary information; without Venues NYC's express written consent;
- Access, tamper with, or use non-public areas of our Platform, Venues NYC's computer systems, or the technical delivery systems of Venues NYC's providers;
- Attempt to probe, scan, or test the vulnerability of any Venues NYC system or network or breach any of the security or authentication measures that we use in connection with the Platform;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Venues NYC or any of Venues NYC's providers or any other third party (including another user) to protect our Platform;
- Attempt to access or search our Platform or download Content from our Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Venues NYC or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Venues NYC trademark, logo URL or product name without Venues NYC's express written consent;
- Use the Platform for any commercial purpose or the benefit of any third-party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use our Platform to send altered, deceptive or false source-identifying information;
- Attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the software, including, without limitation, the source or object code, used by us in providing the Platform;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, malware, crashing, overloading, flooding, spamming, or mail-bombing the Platform;
- Collect or store any personally identifiable information, personal data, personal information, or other sensitive information from our Platform or from other users of our Platform without their express consent;
- Impersonate or misrepresent your affiliation with any person or entity;
- Promote any illegal activity, or advocate, promote or assist any unlawful act; or
- Encourage or enable any other individual to do any of the foregoing.
Although we are not obligated to monitor access to or use of the Platform or to review or edit any Content, we have the right to do so for the purpose of operating the Platform, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to the Platform, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects the Platform. We may also consult and cooperate with law enforcement authorities to prosecute users who violate applicable laws.
4.7 Digital Millennium Copyright Act – Copyright and Takedown Notice Procedures
If you have evidence, know, or have a good-faith belief that your rights or the rights of a third-party have been violated and you want us to delete, edit, or disable the material in question, you must provide us with all of the following information at the contact information listed above:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
By visiting or using our Platform, registering an Account, communicating with Users, making a Listing, making or accepting a Reservation, or otherwise using our Services you hereby irrevocably agree to indemnify, defend, and hold harmless VenuesNYC.com LLC and its employees, agents, contractors, contributors, affiliates, members, managers, officers, directors, shareholders, attorneys, advisors, and representatives ("Indemnified Parties") from and against any and all losses, damages, liabilities, deficiencies, claims, allegations, causes of action, actions, judgments, assessments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, whether direct, contingent, or consequential and no matter how arising, whether or not meritorious, incurred by an Indemnified Party or awarded against an Indemnified Parties (collectively, "Losses"), arising out of or resulting from any claim of a third party arising from or relating to any acts or omissions you commit, including but not limited to, your violation of any applicable law; your violation of these Terms; any act or omission of yours while using our Platform; or any act or omission of any third party whom you allow to access your account or our Platform on your behalf.
4.9 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER VENUES NYC NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES ("LIMITED PERSONS"), ARE OR WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOST REVENUES OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY REASON. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY OF ALL LIMITED PERSONS FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN STRICT LIABILITY, CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU TO EAJD, INC., A DELAWARE CORPORATION D/B/A SHOP TULIP IN THE PRECEDING TWELVE (12) MONTHS, IF ANY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
4.10 Disclaimers and Exculpations
We offer, control, and operate our Platform from our offices in the State of New York. Your use of or access to the Platform outside of the State of New York should not be construed as our purposefully availing ourselves of the benefits or privilege of doing business in any state or jurisdiction other than the State of New York.
We shall not be held responsible or liable for the accuracy of any Content transmitted or made available through our Platform, nor responsible for any error or omissions in any of that Content. Your reliance on the Content or any information associated with our Platform is at your own risk. Not all Content in our Platform is suitable for everyone. You understand and agree that you are solely responsible for your use of our Platform.
To the fullest extent permitted by applicable law, we disclaim, on behalf of ourselves and our affiliates, subsidiaries, parents, affiliates, licensors, managers, officers, members, partners, suppliers, employees, agents, and representatives any and all representations, warranties, and guarantees of any kind of nature, including, but not limited to any implied warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, availability, completeness, informational content, error-free operation, appropriateness for use, compliance with applicable laws in your jurisdiction, or results to be obtained from use with respect to the Platform or Services. To the maximum extent permitted by applicable law, we make the Platform available "as is", "where is," without warranty of any kind. Some jurisdictions do not allow the exclusion of certain warranties, so some or all of the above exclusion may not apply to you.
4.11 System Outages
We periodically schedule system downtime for our Platform, the Accounts, the systems on which they are hosted, and the software or apps required to use each of them. This downtime may be scheduled for maintenance, updates or upgrades, or other purposes. Unplanned system outages may also occur, including, without limitation, for unexpected maintenance or updates, or during peak demand or by virtue of malfunctions or system errors. You agree that we have no responsibility for and are not liable for:
- the unavailability of any of our Platform or your Account;
- any loss of materials, data, transactions, or any other information or materials caused by such system outages;
- the resultant delay, mis-delivery, or non-delivery of data, transactions, or any other information or materials caused by such system outages; or
- any outages caused by any third parties, including without limitation, any companies or servers hosting our Platform, any Internet service providers, any Internet facility or network, any distributed or decentralized network or service provider, or any cellular providers or services.
In addition, the availability of our Platform and/or your Account may be restricted or disturbed, from time to time, in the following cases:
- disruption of your Internet connection or cellular network;
- service failure of your own device(s);
- failure to update to the current version of the software or apps required to access or use our Platform or your Account; or
- due to a Force Majeure Event (defined below).
4.12 Force Majeure
You agree that neither Venues NYC or any party to a Reservation shall incur liability to the one another, and shall not be responsible for any failure to perform any of such party's obligations hereunder or under a Reservation (except for the obligation to pay any monies required hereby), if such failure is caused by reason of strike, other labor trouble, governmental rule, regulations, ordinance, statute or interpretation, or by fire, earthquake, civil commotion, or any and all other causes beyond the reasonable control of such party (collectively, "Force Majeure Event"). The amount of time for such party to perform any of such party's obligations shall be extended for the amount of time such party is delayed in performing such obligation by reason of such Force Majeure Event.
4.13 Entire Agreement
4.14 Restrictions on Assignment
4.15 Meanings of Certain Terms
Any heading, caption or section title contained herein is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. As used in this Agreement, (i) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; (iii) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (v) words denoting any gender include all genders; (vi) the word "days" refers to calendar days; and (vii) the word "dollars" or symbol "$" refers to United States dollars.
Where any provision of this Agreement is found to be invalid, void, or unenforceable in any jurisdiction, then to the maximum extent permitted by applicable law, such provision shall be reformed or reinterpreted as minimally required to accomplish the objectives while maintaining the original intent of such provision. If reformation is not possible for any reason, then the offending provision will be deemed struck and deleted from this Agreement in such jurisdiction and shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
4.17 Revisions to this Agreement
The effective date of this Agreement is set forth in the "Last Updated" entry at the top of this page. We reserve the right change, add, modify, or remove all or part of this Agreement at any time. We will do so by posting an amended copy on our Platform, and the amended version shall become effective as of the "Last Updated" date identified at the top of this page. We will also send email notices to the email address on file with your Account. Modifications to this Agreement will supersede all previous versions of this Agreement as well as any and all statements or representations regarding our Platform and Services. You are responsible for reviewing this Agreement before accessing our Platform. To the maximum extent permitted by applicable law continuing to use or access our Platform, you agree to any modifications. If you do not agree to a modification, please do not use our Platform.
Promptly upon our request, you agree to sign a non-electronic version of this Agreement and any other policies or agreements set forth or available on or through our Platform. If you refuse to do so, we reserve the right to terminate your use of or access to our Platform.
4.18 No Waiver
No waiver by Venues NYC of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Our failure to respond to a request (whether or not such request is made in writing) shall not be deemed to be assent or agreement by us to such request. Our exercise by any of our rights, elections, or remedies under or relating to this Agreement will be without prejudice to our exercise of any other rights, elections, or remedies under the Agreement or otherwise permitted by applicable law, except as specifically set forth in this Agreement.
4.19 No Third-party Beneficiaries
Except with respect to the Indemnified Parties, each of whom are expressly deemed third-party beneficiaries hereunder and may enforce any and all provisions of this Agreement as if they were parties to this Agreement, this Agreement is for the sole benefit of you and Venues NYC and our respective successors and permitted assigns and nothing herein, express, or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
4.20 Notices and Correspondences
You may send notices in relation to the Agreement to us using the contact information displayed above. To the extent permitted by applicable law, you agree that any email notice from us at the primary email address associated with your Account at the time we send a notice is your address for notices. Any notice sent to you at such email address shall be deemed received when sent.
All correspondence relating to this Agreement must be written in English.
4.21 Copies of this Agreement
A printed version of this Agreement and of any notices given in electronic form shall be admissible in judicial or administrative proceedings or arbitration based upon or relating in any way to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Section 5 Binding Arbitration Provisions
5.1 Binding Arbitration
You and Venues NYC agree that any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation, actual or threatened breach, termination or restriction, enforcement, enforceability, interpretation, or validity thereof, or scope of the agreement between you and Venues NYC to arbitrate, disputes of any nature between or among you and any other User, or the use of our Platform or Services (collectively, "Disputes") will be settled through mandatory, binding, and non-appealable arbitration and not in a court of law. This agreement to arbitrate shall not apply where prohibited by law.
5.2 Procedures for Arbitration of Claims Under $5,000
Any Disputes involving a claim of less than $5,000 must be resolved exclusively through binding non-appearance-based arbitration. A party electing such arbitration shall initiate proceedings by filing an arbitration demand with the American Arbitration Association ("AAA"). The arbitration proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes (see www.adr.org for more information). In addition, you and Venues NYC agree that the following rules shall apply to the arbitration proceedings:
- The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
- The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
5.3 Procedures for Arbitration of Claims of $5,000 or More
Any Disputes involving a claim for $5,000 or more shall be submitted to final and binding arbitration pursuant to the substantive and procedural provisions of the Federal Arbitration Act ("FAA"). The arbitration shall be initiated and conducted according to the AAA Commercial Arbitration Rules (see www.adr.org for more information), except as modified herein. The arbitration shall be conducted in New York City, New York before a single, neutral arbitrator appointed in accordance with the arbitration rules cited herein, and whose decision will be final, except for a limited right to appeal under the FAA. The arbitrator shall have the authority to hear and grant motions to dismiss and/or motions for summary judgement, and shall issue written opinions resolving such motions, if submitted. The parties to the arbitration shall have the full right to discovery in accordance with the laws of the United States Federal Rules of Civil Procedure. The arbitrator will provide a detailed written statement of the final decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If either party refuses to perform any or all of its obligations under the final arbitration award (following, appeal, if applicable) within thirty (30) days of such award being rendered, then the other party will have the right to enforce the final award in any court of competent jurisdiction in New York City, New York. The party seeking enforcement shall be entitled to an award of all costs, fees, and expenses, including, without limitation, attorneys' fees. The parties shall use reasonable efforts to maintain the confidential nature of the arbitration proceeding.
Notwithstanding this Section 5, Venues NYC or you may file a civil action to compel arbitration, seek equitable relief, or enter judgment on the award rendered by the arbitrator ("Permitted Court Actions"). Other than the Permitted Court Actions, all Disputes shall be resolved through arbitration in accordance with this Section 5. Permitted Court Actions shall be filed solely and exclusively in courts of competent jurisdiction in New York City, New York. Each party irrevocably submits to the exclusive jurisdiction of such courts in any Permitted Court Action. The parties irrevocably and unconditionally waive any objection to the laying of venue of any Permitted Court Action in such courts and irrevocably waive and agree not to plead or claim in any such court that any such Permitted Court Action brought in any such court has been brought in an improper or inconvenient forum.
5.5 Other Arbitration Terms
Each party shall bear its own costs and expenses incurred in the arbitration or a Permitted Court Action until resolution thereof. The substantially prevailing party in any such arbitration shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its reasonable attorneys' fees, expert fees, costs of the action, and costs of the arbitration (including, without limitation, arbitrator and arbitration forum costs and fees). You and Venues NYC agree that the arbitration contemplated hereby shall be confidential. The arbitrator may not grant a party consequential, incidental, punitive, or exemplary damages.
5.6 Class Action and Jury Trial Waivers
To the maximum extent permitted by applicable law, you agree that any Dispute shall be brought on an individual basis and not as part of a class action or on a consolidated basis. You further agree that you may not join claims with any other person, and waive all rights to a jury, whether in arbitration or in a Permitted Court Action. This Section 5.6 shall not have any effect if not permitted by applicable law or if you opt out by contacting us within 30 days after registering an Account. In any opt-out notice, you must include your name, phone number, physical address, and email address. This is your only mechanism for this Section 5.6. Your failure to timely opt-out constitutes your consent to this Section 5.6. If you opt out of this Section 5.6, all other provisions in this Agreement will remain intact and in full force and effect.