Consumer Terms of Service/Buyer Agreement for
ifonly.com from Traina Interactive
Last Updated: May 22nd, 2015
Welcome to www.ifonly.com! You are now reading our IfOnly Terms of Service (“Terms”), an agreement between you and Traina Interactive, Corp. (“Traina Interactive,” “we” or “us”) which governs your access to our platform and services which we offer via www.ifonly.com and our other websites (collectively, the “Site”).
To make these Terms easier to read, our online platform and service, and the Site are collectively called the “Services.” You must read the Terms carefully before you use the Services. If you have any questions feel free to send us a note at firstname.lastname@example.org. We will happily answer any questions you have.
You’ll notice that some words appear in quotes in the Terms. They’re called “defined terms,” and we use them so we don’t have to repeat the same language again and again, and to make sure that the Terms are consistent. We’ve included the defined terms throughout because we want it to be easy for you to read them in context.
Agreement to our Terms
By accessing or using our Services you agree to be bound by these Terms, whether or not you have registered with the Services, you are an End User (defined below) or a Luminary (defined below). These Terms govern the terms on which all Experiences are made available on the Site.
If you don’t agree, then you shouldn’t, and in fact aren’t permitted to use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
Certain areas of the Site or features of the Services may have additional terms and you should read those additional terms. For example, if you enter a sweepstakes, you will be bound to the terms specific to that sweepstakes. If there’s a conflict between these Terms and the additional terms, the additional terms will govern your use of those areas of the Site or features of the Services.
Changes to these Terms or the Services
We can change these Terms at any time. If we do so, we’ll let you know either by posting the changed Terms on the Site or through other communications. We’ll also update the “Last Updated Date” at the top of these Terms. It’s important that you review the changed Terms because if you continue to use the Services after we’ve provided notice of the change, you’re telling us that you agree to be bound by the changed Terms. If you don’t agree to be bound by the changed Terms then you’re not allowed to use the Services anymore. We’re always striving to make the Services better and because they’re evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our discretion.
We are a Platform Service Provider
Through the Services, we offer an online platform to allow individuals (each an “End User”) to view, purchase and bid for Experiences offered by Luminaries. This means that we act as an intermediary between the End User and the Luminary and our responsibilities under these Terms are limited to facilitating the availability of the Services and collecting payments on behalf of the Luminary.
“Experiences” means the (a) items, goods, collectables, rarities, or other products in physical or digital form (collectively, the “Products”) and (b) experiences including in-person experiences and virtual experiences, offered by the Luminary via the Services. “Experience Listing” means the description of the Experience including, but not limited to, the price of the Experience and the date and time, as applicable. “Luminary” means a person or entity that has accepted these IfOnly Terms and the IfOnly Luminary Addendum, and offers an Experience via the Services; in the case of Experiences involving the sale of alcoholic beverages, the seller is the alcoholic beverage licensee who is offering alcoholic beverages for sale. “Member” means a person that completes our Account registration process, including End Users and Luminaries.
The Luminary, not Traina Interactive, is responsible for honoring the purchase of any Experience. The Luminary may require you, as an End User, to enter into an agreement with the Luminary and you acknowledge that if you fail to do so, you may not be able to participate in the Experience; in such an event, you may not receive a refund or exchange for the purchase of your Experience. Some Experiences include the ability to interact with a Luminary. We do not, and cannot control interactions with Luminaries; we expressly disclaim any liability arising from such interactions. As an End User, you may be required to sign and return a waiver and liability release before you participate in an Experience.
Using the Services
You can only use the Services if you are 18 years or older and are not barred from using the Services under applicable law. Additionally, in order to offer or purchase some Experiences, you must be 21 years or older at the time you offer, or purchase, the Experience.
If you want to use certain features of the Services you’ll need to create an account with a username and password (an “Account”) and become a Member. You can do this via our Site or through your account with certain third-party social networking services such as Facebook or Google (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It’s important that you provide us with accurate and complete information and you promise to keep your Account information up to date. If you don’t, we may have to suspend or terminate your Account. You agree not to share your password and you’ll let us know if there is any unauthorized use of your Account. You’re responsible for all activities that occur under your Account and you’ll immediately tell us about any unauthorized use of your Account.
Becoming a Luminary
You can apply to become a Luminary by completing the application profile via your Account page. Please see our Luminary Support page Luminary FAQ for additional information regarding becoming a Luminary. Traina Interactive reserves the right to approve or reject any Luminary application, for any reason. If you are approved and you agree to the terms and conditions of the “Luminary Addendum” made available to you in connection with the application process, you will be deemed a Luminary. The Luminary Addendum contains terms regarding the creation and posting of Experience Listings, how and what Luminaries get paid for their Experiences and other terms specific to a Luminary’s provision of Experiences in connection with the Services.
Payments and Cancellations/Returns
Upon completion of a purchase on the Site (and upon determination by Traina Interactive that you are the successful buyer, if applicable) for the Experience, you will be liable to pay the total purchase price presented at checkout (“Total Purchase Price”), which may include applicable tariffs, customs, duties or taxes (including any value-added taxes).
When you initiate a purchase transaction or request to schedule an Experience via the Services, you will be asked to provide us with customary billing information such as your name, billing address and credit card information. As an End User, you agree to pay Traina Interactive (on behalf of the Luminary and Charity, if applicable) for any transactions made in connection with your Account by one of the payment methods described on the Site.
Wire transfers are permitted for orders above $10,000. IfOnly will confirm payment receipt before we will ship or fulfill the item or experience. Contact an IfOnly Concierge for more details on wire transfers.
You hereby authorize the collection of such amounts by Traina Interactive by charging your selected payment method. In addition, you agree that Traina Interactive may charge your payment method for verification and pre-authorization purposes and you agree to bear any additional charges that your bank or other financial service provider may levy on you. “Charity” means the non-profit organization that will receive a portion of the proceeds from Experiences sold via the Services. A portion of the amounts paid for Experiences will go to a designated Charity and we help with making sure that the applicable amounts are routed to the applicable Charity.
As an End User, the type of Experience you order impacts when you are charged for your purchase. The process for cancellations and refund eligibility also varies depending on the type of Experience. It is your responsibility to review the confirmation email(s) to verify the accuracy of the information relating to the Experience.
- Payment: Upon the completion of your purchase, we will immediately validate your credit card. Upon shipment, your card will be charged. In some cases, you may request to delay the shipment of the Product purchased. If you agree to delay shipping, you also permit IfOnly or the Luminary to charge you for the order on the date that you submit your shipment delay request. In the case of custom or personalized items, your card will be charged when the Luminary initiates the customization or personalization of your item.
- Cancellations/Returns: Due to the nature of our Products, the majority of items on our site are not returnable. Unfortunately, we cannot be responsible for an item once it has shipped. However, if a product arrives in a condition otherwise stated during the purchase, we would be happy to assist you in addressing the matter. Please reach out to our Concierge teams at email@example.com.
Items that are returnable will be designated as so on their product page on IfOnly.com. Returned physical items must be unused, unworn, unwashed, and undamaged. We are unable to accept returns of goods that are not in their original packaging. Products must be in the condition you received them and in the original box and/or packaging. If a return and/or refund is approved, it will be credited to your credit card account or via wire to your bank within three business days of the date we either receive the returned merchandise or resolve your complaint. To find out if your item is returnable, please contact our Concierge teams via phone or email and be sure to include your order number and explain the problem so that we can most efficiently help you.
Payment: Upon the completion of your purchase, we will immediately validate your credit card and charge you for your purchase amount.
- Cancellations/Returns: Due to the nature of our digital products, these products are not returnable or refundable.
Virtual & In-person Experiences
Any related fees for telephony or connectivity, travel, food or lodging are the sole responsibility of the buyer (or consumer) unless otherwise specified on the relevant product page, IfOnly Terms of Service, and/or receipt.
For “Events”, experiences with a set time and location:
Payment: Upon the completion of your purchase, we will immediately validate your credit card and charge you for your purchase amount.
Cancellations/Returns: Event tickets purchased from our site are neither returnable nor refundable, unless the Event is cancelled and not rescheduled within 30 days.
For “Experiences”, where scheduling (time and/or location), must be agreed upon:
Payment: Upon the completion of your purchase, we will immediately validate your credit card and charge you for your purchase amount. For Experiences that require the End User and Luminary to agree on particulars like the time and location for the Experience, both the End User and Luminary are sent confirmation emails when those details are confirmed by those parties via the Services (“Booking Confirmed”). In the event that the End User and Luminary cannot come to an agreement regarding the particulars, and IfOnly is unsuccessful in finding a suitable alternative, a refund will be made to the End User for the purchase amount.
Experiences as Gifts
If the Buyer chooses to give an experience as a gift, upon the completion of your purchase, we will immediately validate your credit card and charge you for your purchase amount. In the event that the gift recipient and Luminary are unable to agree upon particulars, the gift recipient will be awarded Site credit equal to the purchase amount for use on the Site.
Cancellations/Returns: Once Booking Confirmed, experiences purchased from our sites are final sale (neither returnable nor refundable), unless:
You experience technical problems (for virtual experiences) due to an error on our part or unless the relevant Luminary fails to fulfill the connection or experience AND the experience cannot be rescheduled within 30 days, you will receive a refund to your credit card or bank via wire OR
Canceled by the Luminary AND the experience cannot be rescheduled within 30 days, you will receive a refund to your credit card or bank via wire.
Talent’s right to terminate experiences at will: Note that a virtual or in-person experience can be disrupted and/or discontinued without warning at any time—and with no refund to you—should the Luminary become uncomfortable with the conversation or interaction for any reason.
We do not permit reporters or other members of the media to purchase experiences with our Luminary partners for the purpose of conducting an interview for broadcast or publication. If the Luminary determines that you are in fact attempting to conduct an interview for broadcast or publication, she or he is fully within their rights to terminate the experience with no refund to you.
In either of these cases, please email our Concierge team with your order number immediately so that we can assist you in rescheduling the experience or—if that is not possible—processing your refund.
Shipping and Fulfillment
With some exceptions, physical items (“Product(s)”) sold through IfOnly are shipped via major US shipping companies like UPS and Fedex. Luminaries may ship to all 50 US states and may, depending on the item, ship internationally. Neither IfOnly nor any Luminary has any obligation to ship any Product to a location where delivery is restricted or prohibited by applicable law. Should you have a question regarding shipping, please contact our Concierge team customer care.
If you are the successful buyer of a Product, shipping, handling, and insurance (“Shipping”) of items is incremental to the list price (unless otherwise stated on the product page). If Shipping is not included in the price of an item, the estimated cost for Shipping will be included at checkout in the order process. Neither IfOnly nor the Luminary are responsible for the acts or omissions of carriers or packers of purchases.
You must supply a street address for delivery of Products purchased on the Site. Neither IfOnly nor the Luminary will ship Products to a post office box.
You (the buyer) are responsible for any and all customs, duties, or refusals to allow the shipment to the location specified of such goods. When the Luminary delivers the Product to the carrier for shipment to you, title to the Product and risk of loss will pass from the Luminary to you. If the Product is damaged in transit, you should contact the carrier. IfOnly and the Luminary are not obligated to take a Product back if it was damaged in transit.
Digital Products, Virtual & In-person Experiences
Digital Products, virtual experiences and in-person experiences purchased via our Site are coordinated via our platform, email, and/or telephone.
Digital Products are delivered via email, through your accounts page on our platform, and/or via a social network.
Experiences are delivered via Internet (video conferencing platforms and/or social networks such as Facebook and Twitter) or in-person.
Transactions Involving Alcoholic Beverages
Experiences that include alcoholic beverages may only be purchased by individuals, including without limitation End Users, who are at least twenty-one (21) years old (“Legal Age”). At the time of delivery of any Products containing alcoholic beverages ordered by you using the Site, the shipper will require the signature of an adult possessing identification proving he or she is of Legal Age. You expressly represent and warrant that: (a) you are of Legal Age; and (b) you will provide bona fide identification showing your Legal Age to the shipper or Alcohol Seller of any lots that include alcoholic beverages.
The price of alcoholic beverages is determined by the licensed entity selling such products, and we do not receive profits from the sale of specific alcoholic beverage products. When you place an order for a Product containing alcoholic beverages using the Site (“Alcoholic Beverage Order”), such Alcoholic Beverage Order will be either accepted or rejected by the licensed entity to whom the Alcoholic Beverage Order was placed (“Alcohol Seller”). Neither Traina Interactive nor any Luminary has any authority to accept your Alcoholic Beverage Order, and no sale pursuant to your Alcoholic Beverage Order will become final unless and until Alcohol Seller accepts your Alcoholic Beverage Order. For any Alcoholic Beverage Order accepted by Alcohol Seller (such accepted sale an “Alcoholic Beverage Purchase”), your credit card will be charged, and the funds from your credit card payment that relates to the Alcoholic Beverage Purchase will be deposited into an account for the benefit of Alcohol Seller in compliance with applicable alcoholic beverage laws. Note that we do charge a platform fee in connection with the use of our service unrelated to the price of alcohol.
We don’t plan, host, operate, or provide the Experiences. We also don’t endorse, verify, vouch for, investigate or vet any Members or Experiences. Notwithstanding the foregoing, Traina Interactive reserves the right to conduct by itself, or by third party service providers, background checks on End Users. We’re not responsible for estimates, descriptions, condition, authenticity, title or any other matters relating to the offer and sale of any Experiences. Information about Experiences is provided by the Luminary and we do not verify the accuracy of this information. We’re also not responsible for any personal injury, damage or harm resulting from your provision or purchase of, or participation in, any Experience or your interaction with any Member. By using the Services you agree that any legal remedy or liability that you seek to obtain arising from or related to an Experience, (including, without limitation, your Experience Listing or provision of any Experience) will be limited to a claim against the particular Member or other third parties who caused you harm and you agree not to attempt to impose liability on Traina Interactive, or seek any legal remedy from Traina Interactive with respect to Experiences.
The percentage of proceeds directed to each Charity varies per Experience, and is anywhere from 5% to 100% of the net proceeds per Experience. We do not place a cap on the total amount of contributions provided to any one Charity; nor do we guarantee to provide a minimum dollar amount of contributions to any one Charity. Because the Total Purchase Price represents the full value of the product or service, no portion of the sale price is tax-deductible to you as a charitable contribution. The full name and other information on each Charity is available at the bottom of each Luminary page.
For the safety of our Luminaries, Traina Interactive reserves the right to conduct by itself, or by third party service providers, background checks on you as an End User, including criminal background checks. In such cases, the Experience Listing will state this requirement. Should you decide to purchase an experience with this requirement, you agree to provide any required or applicable signed consents, within 2 business days from the time we contact you or the Gift Recipient, to enable us or our third party service providers to conduct such background checks. This information may include your Social Security Number.
Auctions and Sweepstakes
If you wish to enter an auction or a sweepstakes, contest or similar promotion (each a “Promotion”) in hopes of winning an Experience, you will be bound to the terms specific to that auction or Promotion in addition to these Terms. The additional terms will be posted via the Services. If there’s a conflict between these Terms and the additional terms, the additional terms will govern your use of those areas of the Site or features of the Services.
Content Ownership and Responsibility
“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; “Member Content” means any Content that you provide to be made available through the Services, including Experience Listings. Content includes, without limitation, Member Content.
Traina Interactive does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Member Content. Subject to the foregoing, as between us and you, Traina Interactive and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights therein even if we incorporate any Feedback (as defined below) into subsequent versions of the Services or otherwise use such Feedback. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Subject to your compliance with these Terms, Traina Interactive grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes. By making your Member Content available on or through Services you hereby grant to Traina Interactive a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, modify (for formatting purposes only), distribute, license, publicly display, publicly perform, transmit, stream, broadcast, access and otherwise exploit your Member Content on, through or by means of the Services, including for commercial, advertising and promotional purposes relating to the Services. These rights that you grant to Traina Interactive include permitting Traina Interactive to syndicate your Member Content, including any suggestions for Experiences you provide Traina Interactive or the content of your Experience Listings, on, through or by means of websites operated or owned by third parties.
You are solely responsible for all your Member Content. You represent and warrant that you own all your Member Content or you have all rights that are necessary to grant us the license rights in your Member Content under these Terms. You also represent and warrant that neither your Member Content, nor your use and provision of your Member Content, nor any use of your Member Content by Traina Interactive on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We welcome your input for improvements to the Services! If you decide to provide ideas, comments, suggestions or other feedback to us (whether written, verbal or in any other format) in connection with the Services or these Terms (“Feedback”), you acknowledge and agree that we have no obligation (whether of confidentiality, compensation or otherwise) with respect to such Feedback and we will be free to use and exploit the same in any manner without restriction of any kind. You agree that all Feedback will be the sole and exclusive property of Traina Interactive. You hereby irrevocably transfer and assign to Traina Interactive and agree to irrevocably transfer and assign to Traina Interactive all of your right, title, and interest in and to all Feedback, including all intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect and maintain our intellectual property rights and other legal protections for the Feedback. Further, you acknowledge and agree that Traina Interactive may currently or in the future be developing information and materials internally, or receiving information and materials from other parties, that are similar to your Feedback or Experience Listings. Nothing in these Terms will be construed as a representation or agreement that we will not develop or have developed, distribute, market or promote applications, services, products or concepts that are similar to and/or compete with the applications, services, products or concepts contemplated by or embodied in any Feedback or your Experience Listings.
Member Conduct Terms
You agree that you’ll only use the Services in a manner that is consistent with the Member Conduct Terms, set forth below. If you don’t we might have to suspend or terminate your Account. In connection with your use of the Services you agree that you won’t:
- use the Services for any commercial, governmental or other purposes that are not expressly permitted by these Terms;
- copy, store or otherwise access any information contained on the Services for purposes not expressly permitted by Traina Interactive or that would violate any laws;
- interfere with or damage 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;
- use the Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, personal contact information or credit, debit, calling card or account numbers;
- use the Services in connection with the distribution of unsolicited commercial email (“spam”) or advertisements;
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions, laws governing rental of residential and other properties, and tax regulations;
- use manual or automated software, devices, scripts robots, or other means or processes, including automated scripts, to collect information or otherwise interact with the Services or to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Services or Content;
- register for more than one Account or register for an Account on behalf of an individual other than yourself;
- recruit or otherwise solicit any Luminary or other Member to join third-party services or websites that are competitive to IfOnly, without Traina Interactive’s prior written approval.
- register under a false name or use an invalid or unauthorized credit card. You may not offer to purchase under a false name, impersonate any participant, or use another participant's password(s) or engage in any other fraudulent conduct or conduct intended to interfere with the orderly conduct of business on the Site;
- “stalk” or harass any other user of the Services; mistreat any Traina Interactive employees including, but not limited to, using abusive language in writing or by telephone;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- post, upload, publish, submit or transmit any Content that: (a) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar or offensive; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities or substances;
- use, display, mirror or frame the Services, or any individual element within the Services, Traina Interactive’s name, any Traina Interactive trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Traina Interactive’s express written consent;
- access, tamper with, or use non-public areas of the Services, Traina Interactive’s computer systems, or the technical delivery systems of Traina Interactive’s providers;
- attempt to probe, scan, or test the vulnerability of any Traina Interactive system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Traina Interactive or any of Traina Interactive’s providers or any other third party (including another user) to protect the Services or any of the content on the Services;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or content on the Services; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
Traina Interactive’s Enforcement Rights
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms or to comply with applicable law. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. Traina Interactive, in its sole discretion, may terminate the right of any user to participate in the purchase of Experiences on this Site or to access the Site without notice for any reason. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law or other legal requirements, including providing such authorities with access to any Content on the Site.
Traina Interactive respects copyright law and expects its users to do the same. It is Traina Interactive’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Traina Interactive Copyright Policy, for further information.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such third-party websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate these Terms or your access to the Services or deactivate or cancel your Account, at our sole discretion and without liability to you, at any time and with or without prior notice to you. You may cancel your Account at any time via the “Cancel Account” feature of the Services or by sending an email to us at firstname.lastname@example.org.
Upon termination (a) all undisputed payments that have accrued prior to termination will be payable in full within ninety (90) days after the end of the calendar month in which these Terms are terminated; (b) all licenses and other rights granted to you under these Terms will immediately cease; and (c) any Experience Listings you, as a Luminary, posted prior to the effective date of termination will be removed from the Services. Notwithstanding the foregoing, without limiting rights and remedies available to Traina Interactive, Traina Interactive, in its sole discretion, may withhold payment to you, as a Luminary, if you breach these Terms or commit fraud against Traina Interactive. Upon any termination or suspension, any information that you have submitted to the Services may no longer be accessed by you. Any suspension or termination will not affect your obligations to Traina Interactive under these Terms or your obligation as a Luminary to provide a purchased Experience. The following Sections will survive any termination, discontinuation or cancellation of the Services, these Terms or your Account: Content Ownership and Responsibility; Termination; Indemnity; Warranty Disclaimers; Limitation of Liability; Governing Law; Dispute Resolution; and General Terms.
You will defend, indemnify and hold Traina Interactive and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Services or Content, including without limitation your purchase of an Experience (if you are an End User); (b) your breach of these Terms; (c) your Member Content; or (d) any claim arising out of or related to your Experience Listings and related Experiences and the goods and services provided by you (if you are a Luminary), including, but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TRAINA INTERACTIVE EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. TRAINA INTERACTIVE MAKES NO WARRANTY THAT: (I) THE SERVICES, CONTENT OR EXPERIENCES WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS; OR (II) YOU WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM USE OF THE SERVICES OR POSTING AN EXPERIENCE LISTING.
TRAINA INTERACTIVE MAKES NO WARRANTY REGARDING THE QUALITY, CONDITION, IMPORTANCE, PROVENANCE, LITERATURE OR HISTORICAL RELEVANCE OR RARITY OF ANY EXPERIENCE OR THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES.
TRAINA INTERACTIVE ASSUMES NO RESPONSIBILITY FOR ANY MEMBER’S OR CHARITY’S FAILURE TO COMPLY WITH ANY APPLICABLE LAWS AND REGULATIONS. TRAINA INTERACTIVE EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY MEMBER, CHARITY OR OTHER THIRD PARTY. WE DO NOT, AND CANNOT CONTROL YOUR INTERACTION WITH ANY MEMBER; WE EXPRESSLY DISCLAIM ANY LIABILITY ARISING FROM SUCH INTERACTION. TRAINA INTERACTIVE’S RESPONSIBILITIES UNDER THESE TERMS IS LIMITED SOLELY TO FACILITATING THE AVAILABILITY OF THE SERVICES AND COLLECTING PAYMENTS ON BEHALF OF THE LUMINARY. THE LUMINARY, NOT TRAINA INTERACTIVE, IS RESPONSIBLE FOR HONORING THE PURCHASE OF ANY EXPERIENCE. WE EXPRESSLY DISCLAIM ANY LIABILITY ARISING FROM THE EXPERIENCE LISTING, EXPERIENCES OR USE OF THE SERVICES.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, AS BETWEEN YOU AND TRAINA INTERACTIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ASSUME THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND CONTENT, AND EXPERIENCES, INCLUDING YOUR PURCHASE AND PARTICIPATION IN AN EXPERIENCE. TRAINA INTERACTIVE IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR, ANY PERSONAL INJURY, DAMAGE OR HARM RESULTING FROM YOUR PARTICIPATION IN OR PURCHASE OF ANY EXPERIENCE OR YOUR FUFILLMENT OF AN EXPERIENCE.
TRAINA INTERACTIVE WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, OR EXPERIENCES WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TRAINA INTERACTIVE 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. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL TRAINA INTERACTIVE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, OR THE PARTICIPATION IN OR PROVISION OF EXPERIENCES, IF YOU ARE AN END USER, EXCEED THE AMOUNTS YOU HAVE PAID TO TRAINA INTERACTIVE FOR EXPERIENCES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, OR IF YOU ARE A LUMINARY, THE TOTAL AMOUNT PAID BY TRAINA INTERACTIVE TO YOU UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OF ACTION, OR ONE HUNDRED DOLLARS (US$100.00), IF NO SUCH PAYMENT HAS BEEN MADE, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TRAINA AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Unless you have entered into an additional agreement with Traina Interactive that provides for an alternative dispute resolution mechanism, you agree that any dispute arising between you and Traina Interactive will be governed by the arbitration procedure outlined below.
Informal Dispute Resolution
We want to address your concerns without needing a formal legal case. Before filing a claim against Traina Interactive, you agree to try to resolve the dispute informally by contacting email@example.com. We'll try to resolve the dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Traina Interactive may bring a formal proceeding.
We Both Agree To Arbitrate
You and Traina Interactive agree to resolve any claims relating to these Terms through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate
You can decline this agreement to arbitrate by contacting firstname.lastname@example.org within 30 days of first accepting these Terms and stating that you decline this arbitration agreement.
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco, California, or any other location we agree to.
The AAA rules will govern payment of all arbitration fees. Traina Interactive will pay all arbitration fees for claims less than $75,000. Traina Interactive will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate
Either you or Traina Interactive may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Traina Interactive Service, or intellectual property infringement (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
Judicial Forum for Disputes
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Traina Interactive agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and Traina Interactive consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
These Terms constitute the entire and exclusive understanding and agreement between Traina Interactive and you regarding the Site, Services, Experiences, and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Traina Interactive and you regarding the Site, Services, Experiences, and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Traina Interactive’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Traina Interactive may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Traina Interactive under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Traina Interactive’s failure to enforce any right or provision of these Terms will not be considered a waiver of future enforcement of that right or provision or of any other right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Traina Interactive. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
We’re here to help resolve any issues you may experience. Please reach out to one of our “Concierges” by phone at (415) 376-4640 or via email at email@example.com if you have any issues or need assistance with our Services.