- Application License. Subject to your compliance with the Terms, the Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Applications on a mobile device solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
- Accessing and Downloading the Applications from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
- You acknowledge and agree that (i) the Terms are concluded between you and the Company only, and not Apple, and (ii) the Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between the Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
- You and the Company acknowledge that, as between the Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- App Stores. You acknowledge and agree that the availability of the Applications and the Services is dependent on the third party from which you received the Application license, (e.g., the Apple iPhone or Android app stores (“App Store”)). You acknowledge that the Terms are between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Company Properties, including the Applications, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Applications, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees, if any, charged by the App Store in connection with the Company Properties, including the Applications. You agree to comply with, and your license to use the Applications is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Company Properties, including the Applications. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
- Privacy. Your privacy is important to us. You can view the privacy practices that govern how we process information in our Privacy Statement. By using Company Properties, you consent to your personal information being processed as set out in our Privacy Statement.
- Age Restriction. Company Properties may be used solely to facilitate searching and booking of lodging accommodations and is only for the use of individuals that are 18 years of age or older.
- Prohibitions. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):
- Use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of our Websites, and that you will not take any action that imposes an unreasonable or disproportionately large burden on our infrastructure. In addition, you agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein, without the prior express written consent from an StaySmarter authorized representative (such consent is deemed given for standard search engine technology employed by Internet search websites to direct Internet users to this website); or
- Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Company Properties (including your Account), or access to or use of Company Properties; or
- Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or
- Use the Company Properties or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation; or
- Market any goods or services for any business purposes; or
- Interfere or attempt to interfere with the proper functioning of the Company Properties or connect to or use the Company Properties in any way not expressly permitted by the Terms; or
- Systematically retrieve data or other content from our Company Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise; or
- Use, display, mirror or frame Company Properties, or any individual element within the Company Properties, the StaySmarter, StayAtHand, StayFaster name, any StaySmarter, StayAtHand or StayFaster trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without the StaySmarter’s express written consent; or
- Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Company Properties or that is in transit from or to the Company Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Company Properties; or
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or Company Properties, whether through the use of a network analyzer, packet sniffer or other device; or
- Bypass any robot exclusion headers or other measures that the Company takes to restrict access to Company Properties, or use any software, technology or device to send content or messages, scrape, spider or crawl Company Properties, or harvest or manipulate data; or
- Use, facilitate, create, or maintain any unauthorized connection to Company Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Company Properties; or (ii) any connection using programs, tools or software not expressly approved by the StaySmarter; or
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Company Properties, or to obtain any information from the Company Properties; or
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Company Properties; or
- Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- Solicit or attempt to solicit personal information from other Users of the Company Properties; or
- Use the Company Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or
- Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Company Properties to send altered, deceptive or false source-identifying information; or
- Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”); or
- Make Available any content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities; or
- Harm minors in any way; or
- Impersonate any person or entity, including, but not limited to, StaySmarter personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity; or
- Make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); or
- Make available any content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; or
- Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court; or
- Register for more than one acount or register for an acount on behalf of an individual other than yourself; or
- Stalk or otherwise harass any other user of our Company Properties; or
- Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
- Intellectual Property. Company Properties may contain or reference trademarks, patents, copyrighted materials, trade secrets, technologies, products, processes or other proprietary rights of StaySmarter and/or other parties. No license to or right in any such trademarks, patents, copyrighted materials, trade secrets, technologies, products, processes and other proprietary rights of StaySmarter and/or other parties is granted to or conferred upon you.
- Access Credentials. Company Properties may provide you with the ability to use usernames, passwords, or other codes or devices to gain access to restricted portions of this site (“access codes”). The content contained in such restricted areas is confidential to the Company, and is provided to you for your individual, non-commercial use only. We reserve the right to prohibit the use of such access codes on your behalf by third parties where we reasonably determine that such use interferes with our site's operation or results in commercial benefits or other entities to our detriment.
- WARRANTY. COMPANY PROPERTIES AND ANY OTHER INFORMATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. COMPANY PROPERTIES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. STAYSMARTER MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. STAYSMARTER MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE COMPANY PROPERTIES WILL BE CORRECTED.
NEITHER US NOR ANY OF OUR SUBSIDIARIES, DIVISIONS, AFFILIATES, AGENTS, REPRESENTATIVES OR LICENSORS (“COMPANY PARTIES”) SHALL BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF YOUR ACCESS OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE WEB SITES OR ANY MATERIALS, OPINIONS OR RECOMMENDATIONS OF THIRD PARTIES ON THE WEBSITES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50) IN THE AGGREGATE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
YOU HEREBY RELEASE AND WAIVE ANY AND ALL CLAIMS AGAINST US AND OUR SUBSIDIARIES, DIVISIONS, AFFILIATES, AGENTS, REPRESENTATIVES AND LICENSORS ARISING DIRECTLY OR INDIRECTLY OUT OF YOUR USE OF THE COMPANY PROPERTIESOR ANY MATERIALS ON COMPANY PROPERTIES. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- Communications. With respect to all communications you make to us regarding Company Properties, including but not limited to feedback, questions, comments, suggestions and the like we shall be free to use, and you hereby grant us a royalty-free, perpetual and irrevocable license to use, any ideas, concepts, know-how, content or techniques contained in your communications for the development, production and marketing of products and services that incorporate such information subject to the Privacy Statement.
- Inaccuracies and Errors. Because we receive and provide information from various third party sources, we are not responsible for the timeliness, completeness or accuracy of information on this website that we received from third parties, including but not limited to the result of technical inaccuracies, typographical errors or inaccuracies relating to pricing or availability applicable to your transaction. We shall not assume responsibility or liability for any inaccuracies, errors or omissions, and shall have no obligation to honor information affected by such inaccuracies. We reserve the right to make changes, corrections, cancellations and/or improvements to Company Properties and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction. You acknowledge that StaySmarter has no obligation to pre-screen any aspects or content on the Company Properties, although StaySmarter reserves the right in its sole discretion to pre-screen, refuse or remove any content. StaySmarter shall have the right to remove any content that violates the Terms or is otherwise objectionable.
- Prohibited Persons. StaySmarter is a United States company and is prohibited from providing services to certain “prohibited persons” that are government officials or residents of certain embargoed countries, or other individuals whose names are published on lists maintained by United States government agencies.
- Hotel Information. Company Properties contain information on specific hotels and services that are operated by various hotel companies that are totally independent of us. A reference to a product or service at any specific location does not imply that such product or service is or will be available at any other location and we have not validated the availability of the same, nor will it in any way imply, suggest, or constitute our endorsement or approval of such product or service. We do not make any guarantee or representation that: (i) the Company Properties will contain access to any specific travel provider at any given time or (ii) any specific travel provider will honor the prices displayed through the Company Properties. You use the Company Properties at your own risk.
- Links. If you choose to leave Company Properties via links to websites not controlled by us, we are not responsible for the privacy statement or practices of those websites or the cookies, tracking technologies or the like that those websites use. In addition, because we have no control over such websites and resources, you acknowledge and agree that we are not responsible for the availability of such external websites or resources, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
- Remedies. You acknowledge and agree that a breach of these Terms may cause harm to us for which monetary damages are not a sufficient remedy. In such event you understand and agree that we shall be entitled to obtain from a court of appropriate jurisdiction immediate injunctive or other equitable relief to which we may be entitled under the circumstances in addition to other remedies allowed under these Terms and under applicable law. You further agree to indemnify and hold the StaySmarter harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of, or inability to use, the Company Properties or your violation of any applicable laws, rules or regulations. We reserve the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. You agree that the provisions in this section will survive any termination of your account, the Terms or your access to the Company Properties.
- Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, that provision will be enforced to the fullest extent permitted by applicable law and shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
- Complete Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without StaySmarter’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Communications. The communications between you and us may use electronic means. For contractual purposes, you (1) consent to receive communications from StaySmarter in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that StaySmarter provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- CAUSE OF ACTION. YOU AND STAYSMARTER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE COMPANY PROPERTIES OR ANY CONTENT THEREON MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
- Commencement of Terms. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Company Properties, unless terminated earlier in accordance with the Terms. Notwithstanding the foregoing, if you used the Company Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Company Properties (whichever is earlier) and will remain in full force and effect while you use the Company Properties, unless earlier terminated in accordance with the Terms. StaySmarter has the right to modify, suspend or terminate any Services provided to you at any time with or without reason. You agree that all terminations for cause shall be made in StaySmarter’s sole discretion and that StaySmarter shall not be liable to you or any third party for any termination of your Account. If you want to terminate the Services provided by StaySmarter, you may do so by (a) notifying StaySmarter at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to StaySmarter at 1069 West Broad Street, Suite 114, Falls Church, VA 22046.
- Content. You acknowledge that all content on the Company Properties is the sole responsibility of the party from whom such content originated. This means that you, and not StaySmarter, are entirely responsible for all content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Company Properties (“Your Content”). We do not claim ownership of Your Content. However, when you as a user post or publish Your Content on or in the Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. Subject to any applicable account settings that you select, you grant StaySmarter a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the purposes of operating and providing the Company Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Company Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not StaySmarter, are responsible for all of Your Content that you Make Available on or in the Company Properties.
- Copyright Policy. It is StaySmarter’s policy to terminate privileges of any user who repeatedly infringes copyright upon prompt notification to StaySmarter by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Company Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Company Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for the StaySmarter’s Copyright Agent for notice of claims of copyright infringement in writing at StaySmarter Inc., Att: Copyright Agent, 1069 West Broad Street, Suite 114, Falls Church, VA 22046 or sending an email to email@example.com.
- Jurisdiction. Company Properties are subject to United States law. We may disclose any information regarding the use of Company Properties including personal information pertaining to you without your permission when required by law, or in good faith belief that such action is necessary to investigate or protect against harmful activities to customers, visitors, employees, or property, including Company Properties, or to others. You may not use, export, import, or transfer the Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Company Properties, and any other applicable laws.
Dispute Resolution. We will engage with you directly and use reasonable efforts to resolve any disputes. These Terms and any disputes arising out of or related to the use of Company Properties, shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Virginia, consistent with the Federal Arbitration Act, excluding Virginia’s conflict of laws rules. In any such legal action that you or we may initiate, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to costs and reasonable attorney fees.
Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, the StaySmarter may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Virginia law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Company Properties.
Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- You and StaySmarter must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR STAYSMARTER MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, StaySmarter will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) StaySmarter also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 10 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.
Notwithstanding the foregoing, either you or StaySmarter may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Virginia. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Virginia, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Virginia for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- With the exception of (a)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (a)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor StaySmarter shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Virginia. By using the Company Properties in any manner, you agree to the above arbitration provision.
- For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
- Changes to the Terms.We may revise these Terms over time. If we make any such revisions we will post a message on Company Properties to alert you to the change. You should be aware of any changes as they are binding on you.