YOUR CLICKING “I AGREE” HERETO AND/OR YOUR USE OF THIS WEBSITE (THE “SITE”) AND/OR THE BLACE APP (THE “BLACE APP”) CONSTITUTES YOUR AGREEMENT TO AND ACCEPTANCE OF THE TERMS AND CONDITIONS PROVIDED BELOW (THE “TERMS”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN DO NOT USE THE BLACE APP, THE SITE OR THE SERVICES PROVIDED THEREBY. WE RESERVE THE RIGHT TO MODIFY THE TERMS AS WELL AS DISCONTINUE, SUSPEND, WITHDRAW, REPLACE OR CHANGE THE SITE, THE BLACE APP OR ANY CONTENT OR SERVICES OFFERED AT ANY TIME, SUCH MODIFICATIONS BECOMING EFFECTIVE UPON POSTING BY US ON OR VIA THE SITE OR BLACE APP, AND YOUR CONTINUED USE OF THE SITE, THE BLACE APP OR THE SERVICES THEREAFTER CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THESE TERMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE, THE BLACE APP OR ANY OF THE SERVICES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF JURISDICTION IS SATISFIED. SEE SECTION XIV BELOW (“ARBITRATION, CHOICE OF LAW; JURISDICTION AND VENUE”).
INTRODUCTION AND ACCEPTANCE.
These Terms constitute a binding legal agreement between (“you”) or (“User”) and Blace LLC or an affiliated entity (sometimes referred to as “Blace,” “BLACE,” “the Company,” “us,” “we,” or “our”), and apply to your access to and use of the Site and the BLACE App as well as the real estate site selection, venue management services (collectively with the Site and the BLACE App, as further described below, the “Services”) whether accessed via personal computers, mobile devices or other access device or means (collectively, “Access Device”).
PLEASE CAREFULLY READ THESE TERMS BEFORE USING THE SITE OR BLACE APP, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. THESE TERMS REQUIRE YOU TO GRANT US CERTAIN WAIVERS, CONSENTS, RIGHTS AND LICENSES AND LIMIT OUR LIABILITY AND OBLIGATIONS TO YOU. THESE TERMS SUPPLEMENT THE LICENSE/SUBLICENSE AGREEMENT AND THE TERMS OR CONDITIONS OF ANY OTHER WRITTEN AGREEMENT YOU MAY HAVE WITH BLACE FOR PRODUCTS OR SERVICES OR OTHERWISE (collectively, the “Agreements”). CAPITALIZED TERMS NOT DEFINED HEREIN ARE DEFINED AS PROVIDED IN THE LICENSE/SUBLICENSE AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL CONTRACTING AGE AND HAVE LEGAL CAPACITY TO CONTRACT. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS.
Questions or comments about these Terms may be directed to Blace at firstname.lastname@example.org.
BLACE provides an online marketplace via the Site and the BLACE App for Users looking for a physical venue (each, a “Space” and collectively, the “Spaces”) for use for a User’s event, function, or project (the “Booking”) (each, a “Client” and collectively, “Clients”) to search for available Spaces and purchase a license for use of Spaces, and for owners of Spaces (each, an “Owner” and collectively, “Owners”) to make such Spaces available for use by Clients. The Services may also include Space selection and management services, including but not limited to on-site venue management, security, garbage removal, and clean up. BLACE obtains a license from the Space Owner providing authorization for BLACE to grant a sublicense of the Space to the Client. The Spaces featured via the Site and BLACE App are listed with permission from each Owner. BLACE may also provide to Clients referrals to third-party vendors for ancillary event services.
We do not represent ourselves as real estate agents or brokers, nor do we act as brokers or agents for any of the Owners affiliated with the Spaces, nor are we agents of or affiliated with any of the Clients or vendors with whom we work to provide the Services. Clients are required to review and sign a Facility License and Usage Agreement for a Space with BLACE. BLACE will not sign any contracts on behalf of a Client or Owner.
REGISTERING AS A USER AND CREATING AN ACCOUNT.
To use the Services, whether as a Client or an Owner, you must complete our online registration form and create an account (“Account”) and User profile. You agree to: (a) create only one Account; (b) provide accurate, truthful, current and complete information when creating your Account and User profile; (c) maintain and promptly update your account information and profile; (d) maintain the security of your Account by not sharing your username or password with others and restricting access to your Account and your Access Device; (e) promptly notify us if you discover or otherwise suspect any security breaches relating to your Account at: email@example.com; (f) not sell, transfer or assign your username and password; and (g) accept sole responsibility for all activities that occur under your username and password, whether or not you have authorized the activity. By registering for an Account, you accept all risks of unauthorized access to your Account. We reserve the right to deny registration of any Account at our discretion and to terminate your access to the Services if you provide inaccurate, false or misleading information in connection with your Account or profile.
RESERVATION OF SPACES BY CLIENTS.
To reserve a Space, Clients must engage BLACE by signing a Facility License and Usage Agreement, which is a binding contract between a Client and BLACE for the sale by BLACE to the Client of a sublicense of the relevant Space as-is and where-is, subject to these Terms and the terms set out in the Facility License and Usage Agreement (a “Reservation”). Under the Facility License and Usage Agreement, the Client is granted a temporary, revocable, non-exclusive sublicense to enter and use the sublicensed portion of the Space solely for the purpose of the Booking, and to bring and utilize personnel, personal property, material and equipment necessary in connection with the Booking. The sublicense, unlike a rental or a lease, does not grant to the Client any leasehold interest or other estate in the Space, is personal to the Client and not transferrable or assignable by the Client, is terminable as provided in the Facility License and Usage Agreement and grants the Client only the specifically described use rights and not general control over the Space.
Clients and any vendors engaged by the Client to provide services for the Booking must have adequate commercial general liability insurance in place and host liquor liability insurance, if applicable, as outlined in the Facility License and Usage Agreement, to cover BLACE and any people or property associated with the Space during the license term. The Client is solely responsible for ensuring it has adequate insurance and understanding its insurance requirements to protect itself. BLACE makes no representation that the coverage and amounts of such insurance selected by the Client will be adequate to protect the Client, and BLACE shall not be deemed to have agreed that such insurance shall constitute a limitation of the Client’s liability to BLACE or a third party.
LISTING OF SPACES BY OWNERS.
As an Owner, you may contact BLACE to request that BLACE feature your Space on the Site and BLACE App with photos and a description of the relevant Space. At a minimum, you must provide BLACE with photos of the Space and the following details and specifications: square footage, neighborhood, estimated capacity, ceiling height, availability of the Space, and electrical and HVAC capabilities; permitted and prohibited uses of the Space and any restrictions resulting from Applicable Laws, including but not limited to, planning/zoning laws or restrictions and covenants, conditions and restrictions applicable to any Space; rules concerning utility use; limitations on personal property allowed in a Space by a Client; and any terms and conditions with which a Client must comply (“Space Details”). Owners may request the removal of a Space from the Services at any time prior to the execution of a Facility License and Usage Agreement for use of said Space. Owners are required to enter into an agreement with BLACE for the licensing of the Space by the Owner to BLACE with authorization for BLACE to grant a sublicense to Clients pursuant to the Facility License and Usage Agreement.
By contacting BLACE as an Owner to request the listing of a Space and providing the Space Details, you represent and warrant the following:
a. all information provided in connection with the Space Details is accurate, truthful, current and complete;
b. the applicable Space has and will continue, at all applicable times during the listing of the Space with BLACE, to be properly maintained and free of all safety hazards;
c. your addition of the Space Details and any licensing of the Space to a Client do not and will not violate any agreements you have with third parties, any Applicable Laws, or any other third-party rights or require any third-party consent, waiver or other permission that has not already been obtained;
d. none of the images, renderings, text and other content provided by the Owner relating to the listing of a Space shall infringe or otherwise violate any third-party intellectual property or other rights;
e. you are, and will continue at all times while using the Services to be, compliant with all Applicable Laws, tax requirements and any other rules, regulations and agreements that may apply to the Space included in the Space Details;
f. you have the full right, power and authorization to license the Space to BLACE and to grant to BLACE the right to sublicense the Space to a Client for the purposes described in the Space Details, including (if you are not the landowner/freeholder), having obtained permission in writing from your landlord, any superior landlords and the freeholder of the relevant Space and/or such permissions as may otherwise be required by the terms of your occupation/use of the Space; and
g. you will not use the Services to find a Space and arrange for use of the Space independent of BLACE or otherwise circumvent your obligation to pay BLACE for our Services, or communicate with, or attempt to communicate with, an Owner directly without BLACE’s prior written consent.
PERMITS AND LICENSES.
Except as otherwise agreed upon in the Facility License and Usage Agreement, the Client is responsible for securing and obtaining all necessary permits and licenses for the Booking as required by law, including a necessary temporary permit of assembly, special use permit or other permit from all local governmental agencies.
SPACE MANAGEMENT SERVICES PROVIDED BY BLACE.
a. On-Site Management. BLACE provides a venue manager for on-site management to provide oversight for the benefit of the Space during the Booking, which will be paid for by the Client.
b. Security/Doorman. The Client is required to meet all obligations for temporary assembly permits, security and local fire marshals. Security staffing requirements are based on the nature of the Booking and must be provided by BLACE and paid by the Client.
c. Garbage Removal. Garbage removal pertains to garbage that fits in garbage bags only, not oversized discarded items.
d. General Cleaning. General cleaning refers to a cursory “broom” clean of the Space. If additional cleaning or if décor or other production material is required to be removed, the services will be billed separately and subtracted from the security deposit.
FEES AND PAYMENTS.
You agree to pay any and all security deposits, payments, fees and other charges due for the Services provided by BLACE in accordance to such terms in the Facility License and Usage Agreement. All prices and payments are and shall be in U.S. Dollars. In addition, you acknowledge and agree that you shall pay and be solely responsible for payment of and BLACE may charge you for any applicable taxes, duties and other regulatory or governmental charges. All payments are non-refundable unless otherwise expressly stated otherwise. Payment shall be made by credit card or as otherwise arranged by BLACE. BLACE will process your payments using a third-party service provider and you agree to comply with and be bound by such third party’s terms and conditions for its payment processing services.
You are responsible for providing valid and accurate payment information. If for any reason BLACE is unable to charge your credit card or other payment method for the full amount owed for the Services, or if BLACE receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your credit card or other payment method, you agree that BLACE may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate suspension of your account and/or cancellation, with notice to you, of the Services. BLACE also reserves the right to charge you reasonable additional service fees for additional time and/or costs BLACE may incur as a result of your noncompliance with these Terms (as determined by BLACE in its sole and absolute discretion). Past due payments shall accrue interest at the rate of one and one-half percent (1½%) per month or the applicable maximum legal rate, whichever is less, until the past due balance together with accrued interest has been paid in full.
i. Security deposits.
Clients are required to submit a security deposit payment as security for Client’s obligations under the Facility License and Usage Agreement. BLACE may use, apply, or retain the whole or any part of the security deposit to the extent required for the payment of any portion of damages caused to the Space, additional expenses incurred by BLACE in the provision of the Services, overtime charges, or other charges. The balance of the security deposit will be returned to the Client in accordance to the Facility License and Usage Agreement.
ii. Refunds and cancellations.
Reservations may be cancelled and refunded in accordance with the applicable Owner’s cancellation and refund terms. Any such specific cancellation policy will be provided by BLACE prior to your signing of the Facility License and Usage Agreement. If the applicable Owner does not have cancellation and refund terms then the following refund and cancellation terms shall be applicable: Reservations cannot be cancelled and deposits are non-refundable unless otherwise expressly agreed to by BLACE in the License/Sublicense. If, because of conditions beyond the control of BLACE or the Owner, or force majeure, it is not possible for BLACE to fulfill the terms of this Agreement with respect to a Reservation, the Reservation may be cancelled or terminated by BLACE and notice thereof will be given to the User as soon as reasonably possible. The User releases BLACE, the Owner, and each of BLACE’s and Owner’s respective equity holders and any of their affiliates, partners, trustees, officers, shareholders, directors, agents, employees, or attorneys (herein the “BLACE, Owner and Others”) from any and all liability caused by any cancellation or termination, including without limitation, any damages of any kind or nature, and User agrees to indemnify and hold harmless the BLACE, Owner and Others with respect to claims of third parties claiming by or through the User for claims pertaining to this section.
iii. Withholding payments.
BLACE reserves the right to withhold payment or charge back to your account any amounts, including without limitation, returned security deposits and license or usage fees, otherwise due under these Terms pending BLACE’s investigation of any alleged breach by you of these Terms of the License/Sublease. BLACE also reserves the right to withhold payment or charge back to your account any amounts subject to dispute pending successful resolution of the dispute.
ACCOUNT INFORMATION AND OTHER CONTENT PROVIDED.
By registering, posting, uploading, inputting or otherwise submitting your contact information or other information or content to the Site or BLACE App, you grant to BLACE and its contractors and their respective affiliated companies permission to use same in connection with the operation of the Services, and marketing of the Services to you, including contacting you and sending you emails and other communications, including, without limitation, the rights to: copy, distribute, transmit, reproduce, edit, translate and reformat such information and content as part of marketing Services to you based on your expression of interest and/or request to be contacted. No compensation will be paid with respect to the use of such information or content. Said permission is transferable by BLACE to an acquirer in connection with a business or asset sale. BLACE is under no obligation to post or use any information or content you may provide and may remove any of same at any time in its sole discretion. By posting, uploading, inputting, providing or submitting such information or other content to the Site or BLACE App, you represent and warrant that you are of legal contracting age, that you own or otherwise control all of the rights to such information and content, including, without limitation, all the rights necessary for you to provide, post, upload, input or submit such information and content and that such information and content does not infringe or otherwise violate any third-party intellectual property or other right. BLACE does not control or endorse the content, messages or information found in any communication sent by you to the Site, the BLACE App or to you from any third-party and, therefore, BLACE specifically disclaims any liability with regard to such communications and any actions resulting from your participation in any such communication. Owners, Clients, vendors and Users are not authorized BLACE spokespersons, and their views do not necessarily reflect those of BLACE.
USE OF SITE AND BLACE APP.
You are solely responsible for your conduct in connection with the Services. As a condition of your use of the Site and BLACE App, you represent, warrant and covenant to BLACE that you will not use the Services for any purpose that is unlawful or prohibited by these Terms. You may not use the Services in any manner that could damage, disable, overburden or impair the Services or interfere with any other party’s use and enjoyment of the Services. You will not use the Services for the purpose of obtaining information regarding BLACE’s business and/or the Services’ functions and features in order to create your own business or site offering the same or substantially the same products and/or services. By way of example, and not as a limitation, you will not, and you will not allow or authorize any third-party to, do any of the following.
a. Violate any Applicable Laws, regulations, contract, intellectual property, or other third-party rights, or commit a tort in connection with the Services.
b. Impersonate any third-party or falsify or misrepresent their affiliation with a third-party or send false or misleading information to BLACE.
c. Use the Services or Space for any illegal or unauthorized purpose, or engage in, encourage, or promote any illegal activity or other activity that violates the Agreements.
d. Store, transport or otherwise possess any hazardous or illegal material or substance in any Space.
e. Use a robot, spider or other automated device, process or means to access the Services.
f. License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services.
g. Send any message or content that contains software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary authorizations.
h. Restrict or inhibit any other user from using and enjoying the Services.
i. Harvest or otherwise collect information about others, including contact information such as e-mail addresses.
j. Tamper with other user accounts, commit unauthorized intrusion into any part of the Services or use the Services to intrude into any other site, network, system, device or account, or engage in other interfering or fraudulent activity relating to the Services, including but not limited to, password cracking, defrauding others into releasing their passwords, and denial-of-service attacks.
USE OF THE SERVICES THAT IS INCONSISTENT WITH YOUR OBLIGATIONS UNDER THESE TERMS SHALL BE DEEMED A BREACH OF THESE TERMS AND MAY RESULT IN IMMEDIATE SUSPENSION OR TERMINATION OF YOUR ACCOUNT AND MAY ALSO RESULT IN LEGAL ACTION.
Your use of the Services is at your own risk. Except as expressly otherwise set forth in these Terms, BLACE is not responsible or liable for the conduct of, or interactions with, any other users (whether online or offline) or for any associated loss, damage, injury or harm.
TERM AND TERMINATION.
These Terms will remain in full force and effect while you use the Services and/or have an Account. We reserve the right in our sole discretion and at any time to terminate or suspend your Account or block your access to the Services for any reason, including, without limitation, if you have failed to comply with the letter and spirit of the Agreements or additional terms as set forth in Section 19 herein. You agree that BLACE shall not be liable to you or any third-party for any termination or suspension of your Account or for blocking your access to the Services. BLACE is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your Account.
Any suspension or termination shall not affect your obligations under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your Account or these Terms shall survive, including, without limitation, the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, arbitration, and all of the miscellaneous provisions.
LINKS TO THIRD-PARTY SITES; FRAMING OF THIRD-PARTY SITES
The Services may contain links to other third-party websites or frames of other third-party website screens, including, without limitation, third-party product and services sites, pages providing additional third-party agreements, terms and conditions applicable to the particular products and services, and payment processing sites for use in connection with purchasing products and services. Such third-party sites and linked pages are subject to their own respective terms and conditions posted thereon and are not under BLACE’s control. BLACE is not responsible for the contents of such third-party sites, including without limitation, any link contained in any such site, or any changes or updates to a third-party site. BLACE is not responsible for webcasting or any other form of transmission received from any third-party site, or with respect to any personal or payment information you provide to any such third-party site in connection with purchasing any products or services or otherwise.
All information and materials on the Site and the BLACE App, including without limitation the text, graphics, logos, and all other audible, visual or downloadable materials, as well as the selection, organization, coordination, compilation and overall look and feel of the Site and BLACE App, and the Services are the intellectual property of BLACE and/or its licensors. Copyright © 2017 Blace, Inc. and/or its licensors. All rights reserved. None of the content of the Site, BLACE App, or any Services may be copied, downloaded, transmitted or otherwise be reproduced, disseminated or exploited in any form or manner without the express prior written permission of BLACE. The information and materials are protected by copyright and other intellectual property laws and all ownership rights remain with BLACE, its licensors, as the case may be.
BLACE and the BLACE logo are trademarks of the Company. The Services may depict trademarks owned by third parties. No interest or right to use any BLACE or other trademarks is acquired by purchasing Services or otherwise using the Services. Nothing contained on this Site or BLACE App or in these Terms serves to grant to you, by implication or otherwise, any license or right to use any intellectual property rights without the prior written permission of BLACE or its third-party licensors, or such other third parties that may own the intellectual property. All rights not expressly granted herein are reserved.
COPYRIGHT INFRINGEMENT NOTICES
If you are a copyright owner who believes in good faith that your copyrighted material has been reproduced, posted or distributed on the Services in a manner that constitutes copyright infringement, please inform our designated copyright agent by sending written notice by U.S. Mail to our copyright agent at BLACE’s legal department at firstname.lastname@example.org. Pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, an effective infringement notice must include the following:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. 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;
c. Identification of the material or content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or have access disabled, and information reasonably sufficient to permit us to locate the material;
d. Information reasonably sufficient to permit us to contact the complaining party, including address, telephone number and email address where the complaining party may be contacted;
e. The following statement: “I 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
f. The following statement: “The information in this notification is accurate, and under penalty of perjury, I swear that I am the copyright owner or that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Upon receipt of the written notification containing the information as outlined in A-F above:
1. BLACE will remove or disable access to the content that is alleged to be infringing;
2. BLACE will forward the written notification to the alleged infringer; and
3. BLACE will take reasonable steps to promptly notify the alleged infringer that we have removed or disabled access to the content.
USE OF NAME; PRESS RELEASES.
The BLACE App may include certain features and services that may be available via your mobile phone, including, without limitation: (a) the ability to receive and reply to messages and to send content and messages using text messaging (“Mobile Texts”), and (b) the ability to access the BLACE App to determine your physical location by using information that we obtain from your Access Device (collectively, the “Mobile Services”). We do not charge for Mobile Services. Your carrier’s normal messaging data and other rates and fees will still apply. Certain Mobile Services may be incompatible with your carrier or mobile device. BY USING THE MOBILE SERVICES YOU AGREE THAT WE AND OUR AUTHORIZED PARTNERS MAY COMMUNICATE WITH YOU VIA TEXT MESSAGING SERVICES REGARDING THE BLACE APP SERVICES, OR BY ANY OTHER ELECTRONIC OR DIGITAL MEANS TO YOUR MOBILE DEVICE AND THAT CERTAIN INFORMATION ABOUT YOUR USAGE OF THE MOBILE SERVICES WILL BE COMMUNICATED TO US.
You agree that in connection with the Mobile Services for which you are registered for, we may send communications to your mobile device regarding us or other parties. Further, we may collect information related to your use of the Mobile Services. If you have registered for Mobile Services, you agree to notify us of any changes to your mobile number and update your account(s) on the BLACE App to reflect this change.
COOKIE AND TRACKING TECHNOLOGY NOTICE; DISCLAIMERS.
THE SERVICES AND CONTENT PROVIDED VIA THE SITE AND/OR THE BLACE APP ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” BLACE MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, SATISFACTORY QUALITY, CONTENT ACCURACY, APPROPRIATENESS, AVAILABILITY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE SERVICES OR CONTENT, PERFORMANCE OF THE SERVICES, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. AS A USER, YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR YOUR USE OR NON-USE OF THE SERVICES, AND BLACE MAKES NO REPRESENTATION THAT THE CONTENT APPEARING ON OR DOWNLOADED FROM THIS SERVICE IS COMPATIBLE WITH YOUR ACCESS DEVICE OR FREE FROM ERROR OR VIRUSES. NO BLACE EMPLOYEE, AGENT OR REPRESENTATIVE IS AUTHORIZED TO MODIFY OR AMEND THIS WARRANTY. TO THE EXTENT ALLOWABLE BY EXISTING LAW, BLACE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THIS SITE, THE BLACE APP, ITS CONTENT, AND THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
INDEMNIFICATION; LIMITATION ON LIABILITY; REMEDIES
YOU AGREE TO INDEMNIFY, DEFEND, ADVANCE ANY RELATED COSTS, AND OTHERWISE HOLD BLACE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS AND AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES, BREACH OF THE AGREEMENTS, EXCEPT FOR SUCH CLAIMS, DEMANDS, EXPENSES, OR LIABILITIES ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BLACE. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations under the Agreements.
NEITHER BLACE NOR ANY BLACE DIRECTOR, OFFICER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT OR REPRESENTATIVE SHALL HAVE ANY LIABILITY TO USER OR ANY OF THE OTHER THIRD-PARTY WITH RESPECT TO ACTS OR OMISSIONS RELATING TO THE SPACE OR USE THEREOF BY THE USER PARTIES NOT RESULTING FROM BLACE’S OR OWNER’S GROSS NEGLIGENCE. IN ADDITION, NEITHER BLACE NOR ANY OWNER SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR SPECIAL DAMAGES INCURRED BY ANY OF THE USER PARTIES (INCLUDING BUT NOT LIMITED TO LOSS OF USE OR PROFIT, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION), HOWEVER CAUSED, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. EXCEPT AS OTHERWISE PROVIDED IN THE FIRST SENTENCE OF THIS PARAGRAPH, BLACE AND OWNER’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT (WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE) IS LIMITED TO AN AMOUNT EQUAL TO THE AMOUNTS PAID BY USER TO BLACE HEREUNDER FOR THE APPLICABLE SERVICES DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE THAT THE APPLICABLE CLAIM AROSE.
User and BLACE acknowledge and agree that BLACE will not have adequate remedy at law if the User violates any of the terms of the Agreements. In such event, BLACE shall have the right, in addition to any other rights BLACE may have in the Agreements and under law, to seek injunctive relief to restrain any breach of the Agreements by User and shall be entitled to reimbursement for all attorneys’ fees and disbursements related to enforcement of User’s compliance with the Agreements.
ARBITRATION; APPLICABLE LAW; JURISDICTION AND VENUE
ALL DISPUTES OR CLAIMS RELATED TO THESE SERVICES SHALL BE EXCLUSIVELY ADJUDICATED BY MANDATORY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION. THIS ARBITRATION AGREEMENT SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT. USER ACKNOWLEDGES THAT USER IS WAIVING
ALL RIGHTS TO BRING OR MAINTAIN ANY COURT ACTION, JURY TRIAL OR ANY CLASS CLAIM, CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION, CLAIM OR PROCEEDING AGAINST BLACE IN A COURT OF LAW. BY USING THE SERVICES OR VISITING THE SITE, YOU AGREE AND ACKNOWLEDGE THAT YOU ARE WAIVING USER’S RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.
All claims or actions will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. User acknowledges that arbitration proceedings are usually simpler, consume less time, and are generally more efficient than trials and other judicial proceedings. Arbitration proceedings are designed to be fair and impartial. Arbitrators are qualified to and can grant any relief that a court can. Under mandatory binding arbitration, an arbitrator’s decision is final and enforceable in a court or law and may be overturned by court only under limited circumstances. Arbitration procedures are described below:
1. Arbitration is an alternative to litigation where a neutral person (the arbitrator) hears and decides the parties’ dispute. Arbitration proceedings are designed to provide parties with a fair hearing in a manner that is faster and less formal than court proceedings. The following procedures (the “Arbitration Procedures”) are applicable to all arbitration proceedings involving you and BLACE.
2. Pre-Arbitration Dispute Resolution. BLACE is always interested in resolving disputes amicably and efficiently. So before you commence an arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us at email@example.com.
3. Applicable Rules. The arbitration will be governed by the AAA’s Commercial Arbitration Rules and its Consumer-Related Disputes Supplementary Procedures (together, the “AAA Rules”), as modified by these Arbitration Procedures. If there is any inconsistency between the AAA Rules and these Arbitration Procedures, the Arbitration Procedures will control. However, if the arbitrator determines that strict application of the Arbitration Procedures would not result in a fundamentally fair arbitration, the arbitrator may make any order necessary to provide a fundamentally fair arbitration that is consistent with the AAA Rules.
4. Commencing an Arbitration. To commence an arbitration, you must complete a short form, submit it to the AAA, and send a copy to BLACE at firstname.lastname@example.org.
5. You are responsible for paying your portion of the fees set forth in the AAA’s fee schedule for consumer disputes. If you believe you cannot afford the AAA’s fee, you may apply to the AAA for a fee waiver.
6. Selection of the Arbitrator. The parties, using the AAA’s standard procedures, will select a single arbitrator from a roster of neutrals prepared by the AAA.
Any proceeding to enforce these arbitration terms, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that these arbitration terms are for any reason held to be unenforceable, any litigation against BLACE (except for small-claims court actions) may be commenced only in the federal or state courts located in New York County, New York. You hereby irrevocably consent to the jurisdiction and venue of those courts for such purposes.
The Terms are governed by the laws of the State of New York without application of principles of conflicts of law. Each party hereby expressly consents and submits to personal jurisdiction within New York County, New York in connection with these Terms and waives any and all objections that such venue is improper or inconvenient.
Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR NON-COMPULSORY COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS, THE SPACE, THE USE OR OCCUPANCY OF THE SPACE AND/OR THE RELATIONSHIP OF THE PARTIES CREATED HEREBY.
AMENDMENT AND ADDITIONAL TERMS.
We reserve the right to modify, change, discontinue, suspend, withdraw, replace or add terms, or features of the Site and BLACE App, or Services offered and/or modify these Terms at any time at our sole discretion. Such modifications will become effective upon posting by us on the Site or BLACE App, and your continued use of the Services constitutes your acceptance of such changes. Any Additional Terms that we may provide to you will be incorporated by reference into these Terms and will become effective from the date they are posted on the Site or BLACE App. To the extent any Additional Terms conflict with these Terms, the Additional Terms will control.
If any one or more of the provisions contained in these Terms or the Facility License and Usage Agreement for any reason be found to be invalid, illegal or unenforceable in any respect, said finding shall not affect the remaining provisions, which shall be enforceable to the fullest extent permitted by law, provided that such severance does not alter the fundamental benefit of the bargain to either party.
ENTIRE AGREEMENT AND CONFLICTING TERMS.
These Terms, together with the Facility License and Usage Agreement constitute the complete and exclusive agreement between you and BLACE with respect to use of the Services and supersedes any and all prior or contemporaneous communications, representations, statements, agreements and understandings, whether in oral, written or electronic form, between you and BLACE. In the event of any conflict or inconsistency between these Terms and the Facility License and Usage Agreement, these Terms shall control.
NO ASSIGNMENT OR THIRD-PARTY BENEFICIARIES.
These Terms may not be assigned by you to anyone. We may assign these Terms to a third-party in the event of merger, acquisition, transfer, or sale of some or all of our assets to that third-party or parties. No provision of these Terms is intended to create, or creates, any rights in or benefits to any third party.