Terms of Services
Last updated: 05/27/20
These Terms and Conditions (the “Agreement") are a legal agreement between You, individually or on behalf of the entity You represent (“You”, “Your”, or “Guest”) and Arden (“Arden”, “We”, or “Us”). We require that all individuals and entities visiting www.helloarden.com and its subdomains, as well as all other web properties owned by Us, including any mobile versions (collectively, the “Website”) agree to the following terms. Services that We provide through the Website are referred to as the “Services.” By accessing the Services, You acknowledge that (i) You have read, understood and accepted the following terms and conditions; and (ii) You have had the opportunity to review the applicable terms of service governing any online marketplace or other third-party service from which you downloaded the App.
Through the Services, You may utilize incorporated software to view information, book a vacation rental, and communicate with Us. The Services may also provide information and links related to other products and services, and third party products and services.
By using the Services, You represent to Us that You are at least 21 years old and You agree to be bound by the terms of this Agreement.
IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS THE SERVICES.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST LANDING ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
1. SCOPE OF SERVICES
1.1 The Service is designed to make available flexible occupancy accommodations of furnished residential apartment units (each a “Unit,” and the building in which such Unit is located may be referred to as the “Building”) in multi-family apartment properties (“Accommodations”) for its registered users (“Members”) on the terms and conditions provided in this Agreement.
1.2 The Service may provide links or other access to other sites and resources on the Internet. We have no control over such sites and resources and We are not responsible for and does not endorse such sites and resources. You further acknowledge and agree that We will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that We are not liable for any loss or claim that you may have against any such third party.
1.3 Due to the nature of the Internet, We cannot guarantee the continuous and uninterrupted availability and accessibility of the Services. We may restrict the availability of the Services or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Services. We may improve, enhance and modify the Services and introduce new Services from time to time. We reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that We will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
2. FINANCIAL TERMS FOR GUESTS
2.1 We are responsible for honoring any confirmed bookings and making available any Accommodations reserved through the Services. If you choose to enter into a transaction with Us for the booking of an Accommodation (Members who book Accommodations are “Guests”), you agree and understand that you will be required to enter into a Member Agreement with Us (a “Member Agreement”) for the Accommodation for the Unit and you agree to accept any terms, conditions, rules and restrictions associated with such Accommodation imposed by Us, including our Guest Rules and Regulations Policy displayed from time to time on the Site. You agree to pay Us for all applicable fees (“Service Fees”) for any booking requested via www.helloarden.com. Please note that We cannot control any fees that may be charged to a Guest by his or her bank related to our collection of the Service Fees, and We disclaim all liability in this regard.
3. BOOKING ACCOMMODATIONS
3.1 You understand that a confirmed booking of an Accommodation is a limited, revocable occupancy right granted to you by Us to enter, occupy and use the Unit for the duration of your stay. If indicated in the Member Agreement for the Unit, the term of the Accommodation may be extended or terminated only in accordance with the terms set forth in the Member Agreement. The booking of an Accommodation is expressly subject to (i) your payment of the amounts designed in the Member Agreement as “Initial Amounts Due” before the specified date, and (ii) our receipt of a credit. If the foregoing conditions are not satisfied, we may rescind and cancel the booking of the Accommodation and the applicable Member Agreement and retain any portion of the Service Fees you have paid (if any) necessary to compensate us for the rescission of the Accommodation and Member Agreement, including any processing fee described in Section 5 below.
3.2 You agree to leave the Unit no later than the checkout time on the Termination Date that We specifies in the Member Agreement or such other time as mutually agreed upon between you and Us. If you stay past the specified or agreed upon checkout time without Arden consent (“Overstay”), you no longer have a license to stay in the Unit and We are entitled to make you leave in a manner consistent with applicable law. In addition, you agree to pay for each twenty-four (24) hour period (or any portion thereof) that you Overstay, an additional nightly fee of up to two (2) times the average nightly fee originally paid by you to cover the inconvenience suffered by Us, plus all applicable fees, taxes, and any legal expenses incurred by Us to make you leave (collectively, "Overstay Fees"). If you Overstay at a Unit, you authorize Us to charge you (and to charge your credit card or debit card) to collect Overstay Fees and any rental or occupancy taxes or similar charges assessed by any governmental or quasi-governmental authority due to the duration of your occupancy in the Unit.
3.3 The Unit may be occupied only by the identified occupants specified in the Member Agreement for such Unit (you and the identified occupants, are referred to as “Guests” or “Permitted Guests”). You shall not permit occupancy of the Unit by more than the Guests or Permitted Guests. If you book an Accommodation on behalf of additional guests, you are required to ensure that every additional guest is made aware of and agrees to these Terms of Service and the applicable Member Agreement for the Unit. If you are booking for an additional guest who is a minor, you represent and warrant that you are legally authorized to act on behalf of the minor. If there is more than one Permitted Guest of the Unit, each Permitted Guest (other than minors for whom you are legally authorized to act on behalf of) is jointly and severally liable for all rental and other obligations. Violation of these Terms of Service or the applicable Member Agreement by any Permitted Guest is deemed a violation by all Permitted Guests. .
3.4 You will expressly not be released from these Terms of Service or the Member Agreement for the Unit on the grounds of voluntary or involuntary events including but not limited to school withdrawal or transfer, business transfer, layoff, bad health, or any other reason unless we agree otherwise in writing. We may grant or withhold consent to a release in our sole discretion.
4. PAYMENT PROCESSING
4.1 You may choose to pay for the Accommodation Service by charging (a) your credit card associated with your account or (b) debiting your bank account via a debit card. You will be charged a 2.9 percent (2.9%) processing fee ( booking fee)
4.3 As a condition of Us enabling payment processing service through Stripe or any other Payment Processor, you agree to provide US accurate and complete information about you and your business (if applicable) and to promptly update such information as needed, and also authorize Us to share such information and transaction information related to your use of the payment processing service provided by such Payment Processor. We does not control any fees that may be charged to you by your bank related to Payment Processor’s collection or disbursement of such payment, and We disclaims all liability in this regard. You will ensure that you have sufficient funds or credit (as applicable) associated with the selected method of payment. You understand that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of this Agreement.
4.4 By agreeing to this Agreement or continuing to use the Services, you authorize Us to electronically debit the account or charge the credit card you select for payment in the amount and upon the date you authorize, subject to the Payment Processor Terms, and if necessary, to electronically credit your account or credit card to correct erroneous debits or charges. You acknowledge that all payments that you authorize comply with all applicable law. Once you authorize payment, no changes or corrections to the payment may be made. You understand that you should retain a hard or electronic copy of your authorization for your records.
5. DAMAGE TO ACCOMMODATIONS, DISPUTES BETWEEN MEMBERS
5.1 If you are a Guest, you are responsible for leaving the Unit in the condition it was in when you arrived. You acknowledge and agree that, as a Guest, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who you invite, or otherwise provide access to, the Unit.
5.2 In the event that We claims otherwise and provides evidence of damage, including but not limited to, photographs, you agree to pay the cost of replacing the damaged items with equivalent items. After being notified of the claim and given forty eight (48) hours to respond, the payment will be charged to and taken from the credit card on file. We also reserves the right to collect payment from you and pursue any avenues available to Us in this regard, including using security deposits, in situations in which you have been determined, in our sole discretion, to have damaged any Unit, including, but not limited to, in relation to any payment requests made by Us, and in relation to any payments made by Us. If we are unable to charge the credit card or debit card on file, you agree to remit payment for any damage to the Unit to Us (if applicable).
6. MEMBER CONTENT
6.1 We may, in our sole discretion, permit Guests to post, upload, publish, submit or transmit code, video, images, information, data, text, software, music, sound, photographs, graphics, messages (such content, “Member Content”). By making available any Member Content on or through the Services, you hereby grant Us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sub-license, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, or by means of the Services. We do not claim any ownership rights in any such Member Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
6.2 You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Us the rights in such Member Content, as contemplated under this Agreement; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Honu's use of the Member Content (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
6.3 You acknowledge and agree that We may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or Arden's personal safety, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
6.4 You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (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 animal; (v) promotes illegal or harmful activities or substances; or (vi) violates any Landing policy. Landing may, without prior notice, remove or disable access to any Member Content that Landing finds to be in violation of applicable law, this Agreement or Landing’s then-current policies or standards, or otherwise may be harmful or objectionable to Landing, its Members, third parties, or property.
7.5 Under no circumstances We will be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that We do not pre-screen content, but that Arden and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Arden and its designees will have the right to remove any content that violates this Agreement or is deemed by Landing, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
7. PROHIBITED ACTIVITIES
7.1 You are solely responsible for all Member Content that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Us. We reserve the right to investigate and take appropriate legal action against anyone who, in Arden’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service and reporting you to the law enforcement authorities. You will not and will not assist or enable others to:
a) email or otherwise upload any Member Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) 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; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) 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; or (vii) in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Us or our users to any harm or liability of any type;
b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) solicit personal information from anyone under the age of 18;
g) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
h) unless We explicitly permits otherwise, book any Accommodation if you will not actually be staying at the Accommodation yourself;
i) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
j)further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
k) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
l) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
m) take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Services;
7.2 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services except to the extent you are the legal owner of certain Member Content or as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Landing or its licensors, except for the licenses and rights expressly granted in this Agreement.
7.3 Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Landing or its licensors, except for the licenses and rights expressly granted in this Agreement.
7.4 You acknowledge that We have no obligation to monitor the access to or use of the Services by any Guest or to review, disable access to, or edit any Guests Content, but has the right to do so to (i) operate, secure and improve the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Guests’ compliance with this Agreement; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Guests Content that it determines is harmful or objectionable; or (v) as otherwise set forth in this Agreement. Guests agree to cooperate with and assist Us in good faith, and to provide Us with such information and take such actions as may be reasonably requested by Us with respect to any investigation undertaken by Us or one of our representative regarding the use or abuse of the Services.
7.5 If you feel that any Guests you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Us by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
8. INTELLECTUAL PROPERTY RIGHTS
8.1 You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own Guests Content that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Us from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are our property, our affiliates and our partners property (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Us.
8.2 Our name and logos are trademarks and service marks of Honu (collectively the “Arden Trademarks”). Other Landing, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Us. Nothing in this this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Arden Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Arden Trademarks will inure to our exclusive benefit.
8.3 Landing respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Us of your infringement claim in accordance with the procedure set forth below.
8.4 We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Us at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”).
To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
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 or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
8.5 If you believe that your Guest Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your Guests Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, We will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
8.6 In accordance with the DMCA and other applicable law, We have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers.
9. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
IF YOU ARE BRINGING A MINOR AS AN ADDITIONAL GUEST, YOU ARE SOLELY RESPONSIBLE FOR THE SUPERVISION OF THAT MINOR THROUGHOUT THE DURATION OF YOUR STAY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS LANDING FROM ALL LIABILITIES AND CLAIMS THAT ARISE IN ANY WAY FROM ANY INJURY, DEATH, LOSS OR HARM THAT OCCURS TO THAT MINOR DURING YOUR STAY OR IN ANY WAY RELATED TO YOUR STAY.
10. INDEMNITY AND RELEASE
You agree to release, indemnify and hold Arden and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any Member Content, your connection to the Service, your violation of this Agreement or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
11. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES OR ANY OTHER INTERACTION YOU HAVE WITH OTHER GUESTS WHETHER IN PERSON OR ONLINE REMAINS WITH YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA, DAMAGES FOR SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THESE TERMS; (II) THE BOOKING OF A LISTING; (III) THE USE OR THE INABILITY TO USE THE SERVICE; (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (VI) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (VII) ANY OTHER MATTER RELATING TO THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LANDING HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL ARDEN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND YOUR USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, FROM YOUR BOOKING OF ANY LISTINGS VIA THE SERVICE, OR FROM THE USE OF OR INABILITY TO USE THE SERVICE AND IN CONNECTION WITH ANY ACCOMMODATION OR INTERACTIONS WITH ANY OTHER GUESTS, EXCEED THE AMOUNT YOU HAVE PAID US IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
12. DISPUTE RESOLUTION BY BINDING ARBITRATION: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a) Agreement to Arbitrate This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Us, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Arden are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b) Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AND ARDEN AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND AEDEN AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c) Pre-Arbitration Dispute Resolution :We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Arden and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Arden may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Landing or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Landing is entitled.
d) Arbitration Procedures Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless you and Arden agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, We agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e) Costs of Arbitration Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, We will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, We will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, We will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
f) Confidentiality All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g) Severability If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h) Future Changes to Arbitration Agreement Not withstanding any provision in this Terms of Service to the contrary, We agree that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Without limiting our rights specified below, Arden may terminate this Agreement for convenience at any time via email to your registered email address.
13.1 If no Member Agreement is in place at the time, We may immediately, without notice, terminate this Agreement and/or stop providing access to the Services if (i) you have materially breached your obligations under these Terms of Service, the Guests Agreement our policies or standards, (ii) you have violated applicable laws, regulations or third party rights, or (iii) We believe in good faith that such action is reasonably necessary to protect the personal safety or property of Us, its Members, or third parties (for example in the case of fraudulent behavior of a Member).
13.2 In addition, We may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached this Agreement, our policies or standards, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the booking process or thereafter; (iv) We become aware of or has received complaints about your performance or conduct, (v) you have repeatedly cancelled confirmed bookings without a valid reason, or (vii) We believes in good faith that such action is reasonably necessary to protect the personal safety of Honu or its Guests, or third parties, or to prevent fraud or other illegal activity:
refuse to surface any Guests Content;
cancel any pending or confirmed bookings;
limit your access to or use of the Services;