Date of Last Revision: October 9, 2013
Welcome to SideTour!
2. User Responsibilities
2.2 Third-Party Content. In using the Services, you may be exposed to content and information, for example, data, text, files, information, usernames, graphics, images, photographs, profiles, audio, video, messages, services or links, from other users or third parties (“Third-Party Content”), either at the Site or through links to third-party websites. SideTour does not control, and is not responsible or liable for, Third-Party Content posted on, transmitted through or linked from the Services. Such Third-Party Content is the sole responsibility of the person from whom such Third-Party Content originated. You understand that by using the Services, you may be exposed to Third-Party Content that is incomplete, offensive, indecent, inaccurate, misleading, unlawful or otherwise objectionable. You must evaluate the veracity of, and bear all risks associated with your exposure to, Third-Party Content.
2.3 Identity Verification. You acknowledge that SideTour does not pre-screen users or approve Third-Party Content and makes no attempt to confirm, and does not confirm, any user’s purported identity. We do not investigate any user’s reputation, conduct, morality, and criminal background or verify the information that any user submits to the Site. We do not endorse any persons who use, or register for, the Services, whether as Customers or Experience Providers, or any Experience listed on the Site. You are responsible for determining the identity and suitability of others whom you may contact or who may contact you by means of the Site. You agree to exercise caution and good judgment in all interactions with other users. SideTour encourages you to communicate directly with potential transaction partners through the tools available on the Site and to review your Host and Experience Provider’s profile pages for feedback from other users. You may also wish to consider using a third-party service that provides additional user verification.
2.4 Release. To the extent permitted under applicable laws, you hereby release SideTour from any liability related to: (a) any incorrect or inaccurate Content posted on the Services, whether caused by us or any user of the Services, or by any of the equipment or programming associated with or utilized in the Services; (b) the conduct, whether online or offline, of any Experience Provider, Host or Customer; (c) any injury, loss or damage caused by another user, an Experience, or Content posted on the Services, whether online or offline; and (d) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services’ users’ communications. 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.
2.5 Providing an Experience.
As an Experience Provider, you will define the conditions of, and may supply the content and images to describe and illustrate, your Experience and its terms, by completing and submitting, or authorizing an agent to complete and submit, a request to us. Submission of a request does not obligate SideTour to accept the request or any of its contents nor to promote the Experience, and is not binding on SideTour. You are responsible and liable for all Experience content and terms, and for our or any Customer’s use or reliance on any of the foregoing. If we accept your request, we may promote the Experience using any method and through any medium that we deem appropriate in our sole discretion, including through e-mail, mobile applications and any other type of electronic interface or distribution channel owned, affiliated, controlled or operated by or through SideTour. We further reserve the right, but have no obligation, to promote the Experience through our Parent Company, affiliates and third party business partners from time to time. SideTour will promote your Experience to SideTour customers and potential customers based on geographic or other geolocational data, but will determine the customers and potential customers to whom your Experience is actually promoted and made available, if any, in its sole discretion. Experience Providers are entirely responsible for the Experience and any interaction with Customers.
As an Experience Provider, you agree to: (a) accurately describe the Experience so that it complies with industry standards and applicable law (e.g., it is not deceptive, false or misleading) (b) specify all generally applicable policies (e.g., cancellation policies that apply to all Customers), restrictions and contractual arrangements (e.g., liability waivers required for all customers) applicable to the Experience prior to offering the Experience ("Rules"), and SideTour will have no liability for the nature of your Rules or your failure to specify appropriate Rules; (c) provide the Experience without imposing restrictions or policies not listed in the Rules; (d) not accept any gratuity or require additional payments (including taxes) in order to deliver the promised Experience; (e) comply with all local laws and regulations in offering and providing your Experience (especially regarding safety and licensing requirements, food preparation, alcohol, etc.); (f) not solicit users to participate in an Experience off the platform or otherwise circumvent any fees that are paid or would be payable to SideTour and (g) obtain all required permissions, licenses, consents, permits and allowances from any and all third-parties involved with or related to the Experience, including the venue(s) at which the Experience occurs or third party intellectual rights used or otherwise exploited as part of the Experience. You agree that unless you obtain the consent of any Customer, you will use the personal information of the Customer provided to you by SideTour only to communicate with the Customer about the Experience in accordance with Section 9.2, and for no other purpose.
2.7 Relationship between Customers and Experience Providers. If you are a Customer, you provide to each Experience Provider the covenants provided to SideTour in Sections 2.6 and 4.2, and agree to be bound by all Experiences that occur based upon false or inaccurate information, even if the false or inaccurate information was provided accidentally. If you are an Experience Provider, you provide to each Customer the covenants provided to SideTour in Sections 2.5, 4.2 and 9.2, and agree to be bound by all Experiences that occur based upon false or inaccurate information, even if the false or inaccurate information was provided accidentally.
2.8 Recordings. SideTour may photograph and/or record Customers engaging in an Experience, and any such image, recording or video (collectively “Recording”) will be owned exclusively by SideTour. You agree that to the extent that your name, likeness, biography and / or voice appears in any such Recording, you grant to SideTour an unrestricted, perpetual, worldwide right to use your Image as contained in the Recording in all media now known and later developed for any purpose, including for the purpose of promoting the Site and Services.
3. Eligibility for Use
3.1 Age. The Services are available only to, and may only be used by, individuals who are 18 years and older. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. You may purchase Experiences on behalf of others who are not 18 years of age provided the Rules of the applicable Experience allow for participation by individuals younger than 18.
3.3 Legal Compliance. You represent and warrant that you comply with all applicable domestic and international laws, statutes, ordinances and regulations, including without limitation any laws or regulations requiring licenses such as sightseeing guide licenses, and will use the Services in a manner consistent with all such applicable laws, statutes, ordinances and regulations.
3.4 Right to Refuse Access. SideTour may, in its sole discretion, refuse to offer access to or use of the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions.
4. User Conduct
4.1 Rules and Restrictions. You are solely responsible for your conduct and activities on and involving the Services and any and all content and information, for example, data, text, files, information, usernames, graphics, images, photographs, profiles, audio, video, messages, services or links (“Content”), that you submit, post and display on the Site or otherwise make available through the Services. In connection with your use of the Services, you must act responsibly and exercise good judgment. You agree to provide and maintain true, accurate, current and complete information about yourself or your Host. Without limiting the foregoing, you will not use the Services to:
(a) post or otherwise transmit any Content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable; (ii) depicts or advocates the use of illicit drugs; (iii) makes use of offensive language or images; (iv) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (v) poses or creates a privacy or security risk to any person; (vi) infringes any intellectual property or other proprietary rights of any party; (vi) is protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right; (vii) 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 (ix) in the sole judgment of SideTour, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose SideTour or its users to any harm or liability of any type;
(b) violate any applicable local, state, national, international or other law or regulation, or any order of a court, including as it concerns online conduct and acceptable content;
(c) further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
(d) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
(e) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
(f) interfere with, disrupt or damage the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
(g) use the Services to 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;
(h) harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
(i) “stalk” or harass any other user of the Services or collect or store any information about any other user other than for purposes of transacting as an Experience Provider and Customer with one another;
(j) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services;
(k) register for more than one user account or register for a user account on behalf of an individual other than yourself except as set forth in Section 3.2;
(l) transfer or sell your account and/or username to another party;
(m) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
(n) use automated scripts to access, search collect information or otherwise interact with the Services (including without limitation robots, spiders or scripts) or use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
(o) use the Services to find an Experience Provider, Host or Customer and then complete the transaction offline in order to circumvent your obligation to pay for the Services;
(p) submit any experience with a false or misleading price, or submit any listing with a price that you do not intend to honor, or take any other action that may undermine the feedback or ratings systems;
(q) provide a link to any other website;
(r) use, reproduce, duplicate, copy, sell, resell or exploit: (i) any portion of the Site or Services; (ii) your use of the Site or Services, or (iii) your access to the Site or Services, in each case for any purpose other than for which the Site or Services are being provided to you; or
(s) advocate, encourage, or assist any third party in doing any of the foregoing.
4.3 Listing Conditions. By listing an experience on the Site, you (a) warrant that you and all aspects of the experience comply with SideTour’s published policies and all applicable laws, (b) assume full responsibility for the content of the Experience offered, (c) understand that it is publicly available to be viewed and booked by any individual and (d) acknowledge and agree that the price and time you specify for that listing will constitute an essential part of a binding agreement between you and the Customer and agree to honor all registrations through the Site at the price and time listed.
5. Right to Cancel Account or Delete Content
5.1 Our Right to Cancel Accounts. SideTour may, in our sole discretion and without liability to you or to any third party, with or without cause, with or without notice and at any time: (a) terminate your access to the Services, (b) deactivate or delete any of your accounts and all related Content and Experiences, (c) bar your access to any of such Content or (d) refuse, edit or delete any Content that you post or submit to the Site or through the Services.
5.2 Storage of Content. You acknowledge that SideTour may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that Content will be retained by the Services and the maximum storage space that will be allotted on SideTour’s servers on your behalf. You agree that SideTour has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Services. You further acknowledge that SideTour reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
6. Payment; Fees
6.1 Fee Structure. In exchange for providing the Services, SideTour keeps a portion of the Experience Provider’s price of each Experience. As a Customer, you agree to pay the amount posted by the Experience Provider from whom you have chosen to purchase an Experience. As an Experience Provider, posting a listing is free, but you agree to pay SideTour our then-current service charge for each purchase made by a Customer. SideTour’s Fees Policy, which is subject to change, is available on the Site at http://www.sidetour.com/community-guidelines and is hereby incorporated by reference. Changes to the Fees Policy and the fees for SideTour’s services are effective after SideTour provides you notice by posting the changes on the Site. However, SideTour may choose to temporarily change the Fees Policy and the fees for SideTour’s services for promotional events of Experiences not then offered; such changes are effective when SideTour posts the temporary promotional event on the Site or otherwise through the Services. Each Customer will be solely responsible for any payments due to Experience Provider, and Experience Provider will be solely responsible for providing the Experience to the Customer. Under no circumstances will SideTour be liable to an Experience Provider for payment for any Experiences ordered by a Customer or liable to a Customer to provide any Experiences. Please remember that listing an Experience as an Experience Provider does not mean that a Customer will contact you or that you will have the opportunity to provide your services for an Experience.
6.3 Experience Provider Fee Terms. If you are an Experience Provider, SideTour will endeavor to remit Revenue (defined below) to you, less SideTour’s applicable fees (as described on the Site and in the Services), within 10 days of the date of commencement of the Experience. For purposes hereof, “Revenue” will mean gross revenue actually received by SideTour from its sale of Experiences hereunder, less taxes, refunds, returns, chargebacks and bad debt. All Revenue will be paid to the Experience Provider in accordance with the payment information provided by the Experience Provider to SideTour through the Services, and the Experience Provider is solely responsible for ensuring such information remains accurate and up to date. If the Experience Provider disputes any payments, the Experience Provider must inform SideTour within sixty (60) days after the date that SideTour pays the Experience Provider. If the Experience Provider fails to dispute any payment within the sixty (60) day period, the earlier determinations of SideTour will be deemed irrefutable. Your state or locality may impose a tax or taxes on your provision of an Experience. Because SideTour is not a party to your agreement with the Customer and is not your or the Customer’s contracting agent, to the extent there is any state tax, local tax, or VAT on the Experience and/or the services you provide to the Customer, it is your sole responsibility to collect and/or pay such tax due and remit such tax or taxes to the appropriate taxing jurisdiction. For questions about your liability for any tax, you should contact your own attorney, accountant or tax advisor. If you determine that you need to collect tax for the Experience, please add the tax amount to the price. We also recommend that you are clear in your listing description and communication with guests about the tax.
6.4 Refunds and Cancellations. If you wish to cancel or obtain a refund for an experience, please see SideTour’s Refund and Cancellation Policy available on the Site at http://www.sidetour.com/community-guidelines.sidetour.com/community-guidelines. The Refund and Cancellation Policy is hereby incorporated by reference.
6.5 Donations. Some Experience Providers may pledge to donate a portion of the funds they receive to a particular cause or charity. We do not control, and will not take any responsibility or liability for, whether the Experience Provider does in fact make the donation they pledged to make.
6.6 Taxes. You will be responsible for paying any and all taxes applicable to any purchases or sales of experiences you make on the Site (excluding any taxes on SideTour’s net income).
8. Password and Account Security
8.1 Responsibility to Maintain Confidentiality. You are solely responsible for maintaining the confidentiality of your password(s) associated with any account you use to access the Services. Accordingly, you understand and agree that you are solely responsible for any and all activities that occur under your account.
8.2 Notification of Unauthorized Use. You agree to (a) immediately notify SideTour at [email protected] of any unauthorized use of account or any other breach of security, and (b) ensure that you log off and exit from your account at the end of each session when accessing the Services.
8.3 No Liability. SideTour will not be liable for any loss or damage arising from your failure to comply with this Section 8.
9. Intellectual Property
You will not upload, post or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. SideTour does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. You are entirely responsible for each individual item of Content you submit or make available on the Site or the Services, and you agree that such Content may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by us, and searched, displayed, printed or otherwise used or exploited by our users. Accordingly, you agree that we may authorize third parties, for example, entertainment publications, to republish all or parts of your Content for the purpose of promoting your Experience and / or SideTour. You agree to indemnify and hold SideTour harmless if you do not have the rights in your Content stated in this Section.
9.3 Re-posting Content. You may not display your own SideTour-hosted image on another website, without our express written permission.
9.5 Use of Our Intellectual Property. You may not systematically retrieve data or other content from the Site 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, or spiders, or otherwise. You may not display any portion of the Site in a frame (or any content from the Site through in-line links) without our prior written consent, which may be requested by contacting us at [email protected]. You may, however, establish ordinary links to the homepage of the Site without our written permission, and you may make use of embedded HTML “widgets” if we have provided the HTML code.
10. Right to Modify or Discontinue Services
SideTour may, in our sole discretion and without liability to you or to any third party, with or without cause, with or without notice modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof). If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
11. Disclaimer of Warranties
11.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOU ACKNOWLEDGE AND AGREE THAT SIDETOUR DOES NOT CHECK, VERIFY OR GUARANTEE ANY CUSTOMER, EXPERIENCE PROVIDER, HOST, OR OTHER USER’S BACKGROUND OR RECORD. SIDETOUR HAS NO LIABILITY OR RESPONSIBILITY FOR ANY EXPERIENCE OR ANY INDIVIUALS PARTICIPATION IN ANY EXPERIENCE.
11.2 IN PARTICULAR, SIDETOUR, ITS PARENT COMPANY, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) THE QUALITY OF THE EXPERIENCES, ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOU EXPECTATIONS;
(B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE COMPLETE, ACCURATE OR RELIABLE;
(D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOU EXPECTATIONS; OR
(E) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE OR ERRORS IN ANY DATA PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
11.4 SIDETOUR, ITS PARENT COMPANY, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FURTHER EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. THESE DISCLAIMERS APPLY TO THE SITE, SERVICES AND THE EXPERIENCES.
12. Limitation of Liability
12.1 SUBJECT TO SECTION 11.5, YOU EXPRESSLY UNDERSTAND AND AGREE THAT SIDETOUR, ITS PARENT COMPANY, SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES WILL NOT BE LIABLE TO YOU FOR:
(A) ANY INDIRECT, GENERAL, SPECIAL, COMPENSATORY, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, AND/OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFIT, LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR OTHER INTANGIBLE LOSSES, BODILY INJURY, EMOTIONAL DISTRESS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE;
(B) ANY LOSSES OR DAMAGES WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSSES OR DAMAGES AS A RESULT OF OR ARISING FROM:
(I) THE USE OR INABILITY TO USE THE SERVICES OR PARTICIPATE IN ANY EXPERIENCE;
(II) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY. RELIABILITY OR EXISTENCE OF ANY LISTINGS;
(III) ANY EXPERIENCE, INTERACTION, COMMUNICATION, RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY OTHER USER OF THE SERVICES IN CONNECTION WITH THE SERVICES OR ANY EXPERIENCE;
(IV) STATEMENTS, CONDUCT OR OMISSIONS OF YOU, ANY CUSTOMER, EXPERIENCE PROVIDER, HOST OR OTHER THIRD PARTY ON OR IN CONNECTION WITH THE USE OF THE SERVICES OR ANY EXPERIENCE, WHETHER ONLINE OR OFFLINE;
(V) HARM TO YOU CAUSED IN WHOLE OR IN PART BY A THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANOTHER USER OF THE SERVICES OR ANY PARTICIPANT IN ANY EXPERIENCE;
(VI) HARM OR DAMAGE TO YOUR PROPERTY AS A RESULT OF USING THE SERVICES OR PARTICIPATION IN ANY EXPERIENCE;
(VII) ANY CHANGES WHICH SIDETOUR MAY MAKE TO THE SERVICES, OR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(VIII) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(IX) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; OR
(X) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
12.2 SUBJECT TO SECTION 11.5, IN NO EVENT WILL SIDETOUR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION ARISING OUT OF THE SERVICES, ANY EXPERIENCE OR THIS AGREEMENT EXCEED THE GREATER OF (A) THE AMOUNT YOU HAVE PAID SIDETOUR IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) TEN DOLLARS ($10.00).
12.3 THE LIMITATIONS ON SIDETOUR’S LIABILITY TO YOU IN THIS SECTION 12 WILL APPLY WHETHER OR NOT SIDETOUR HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
YOU AGREE TO INDEMNIFY AND HOLD SIDETOUR (ITS PARENT COMPANY AND EACH OF ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) HARMLESS FROM ANY DIRECT CLAIM, THIRD-PARTY CLAIM, DEMAND, ACTION, DAMAGE, LOSS, COST OR EXPENSE, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES, ARISING OUT OF OR RELATING TO YOUR PROVISION OF, USE OF, OR PARTICIPATION IN ANY EXPERIENCE OR SERVICE. SIDETOUR WILL CONTROL ANY SUCH DEFENSE AND RELATED SETTLEMENT AND YOU WILL REASONABLY ASSIST US THEREWITH AT YOUR EXPENSE.
14. No Agency
15. Copyright Infringement
We respect the intellectual property of others, and we ask you to do the same. SideTour reserves the right to terminate the right to use the Site by a user who infringes the copyrights of another.
If you believe that any material has been posted via this Site by a user in a way that constitutes copyright infringement, please provide our copyright agent the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Site or Services;
- Your address, telephone number, and email address;
- A 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
- 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.'
Our copyright agent for notice of claims of copyright infringement on the Site or the Services can be reached by mail at: Copyright Agent, SideTour, Inc., 33 West 19th Street, New York, NY 10011 or by email at [email protected].
16. Electronic Communications.
17. General Terms
18. Arbitration Agreement And Jury Trial Waiver, Class Action Waiver, And Forum Selection Clause
- You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract 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 SideTour must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration will be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration will be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and SideTour, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR SIDETOUR MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, SideTour 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, (g) SideTour also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator will honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or SideTour will be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/SideTour customer; and (j) 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.
- With the exception of subparts (d) and (e) in the paragraph 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 will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor SideTour will be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and SideTour will be exclusively brought in the state or federal courts specified in subsection “(d)” above.
- 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
20. Reporting Misconduct
If you use the service of a Experience Provider, Host or provide a service to any Customer who you feel is acting or has acted inappropriately, including but not limited to offensive, violent or sexually inappropriate behavior, who you suspect of stealing from you, or who engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to SideTour by contacting us with your police station and report number at [email protected]; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
21. Feedback; Questions