THE FOLLOWING DESCRIBES THE TERMS ON WHICH CHOWBUNGA OFFERS YOU ACCESS TO OUR PLATFORM.
1. Acceptance of this Agreement
1.2 Our Right to Modify. We reserve the right to modify this Agreement, including those additional terms and conditions and policies referenced herein and/or available by hyperlink, at any time, effective upon posting of an updated version of this Agreement on this page of the Platform. You are responsible for reviewing the most recent version of this Agreement and remaining informed about any modifications. By using this Platform, you agree that the posting of a new or revised Agreement on the Platform will constitute adequate and constructive notice to you of any and all revisions and changes. Continued use of the Platform after any such changes or after explicitly accepting this Agreement upon logging into the Platform shall constitute your consent to such changes.
2. User Responsibilites
2.1 Chowbunga is a Venue. Our Platform merely provides users with a variety of tools and resources to facilitate organizing of physical social gatherings (“Parties”) at venues that include, but are not limited to, public parks, private homes or private enterprises (such as retail stores or shops), or offices. We do not supervise these Parties and are not involved in any way with the actions of any individuals at these Parties. As a result, we have no control over the identity or actions of the individuals who are present at these Parties, or the quality, safety, morality or legality of any aspect of the Parties listed. For these reasons, we request that our users exercise caution and good judgment when attending these Parties.
2.2 Legal Compliance. You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our Platform, including without limitation your participation in or involvement with any Parties and your submission of acceptable Public Information (as defined in Section X ("Your Information")). You also agree to comply with all applicable laws, statutes, ordinances and regulations regarding the transmission of technical data exported from the United States or the country in which you reside.
2.3 Release. Because our Platform is merely a venue, and because we do not supervise or control the Parties or interactions among or between members and other persons or enterprises, and because we are not involved in any way with physical transportation to or from Parties or with the actions of any individuals at Parties, and because we do not control credit card companies or other payment processing companies, and because we cannot guarantee the true identity, age, nationality of Platform users, and because we have very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Platform you agree that you bear all risk and you agree to release us (and our officers, directors, shareholders, agents, employees, affiliates, subsidiaries, and third party partners) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with your use of the Platform, your Third Party Transactions, our resolution of any disputes among users, and/or your transportation to or from, attendance at, or the actions of you or other persons at, a Party. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits which you have or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation the states of Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits.
2.4 Identity Verification. You acknowledge that Chowbunga 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. Although we provide tools intended to assist you, such as our trust and reputation features, you are responsible for determining the identity and suitability of others with whom you may contact or who may contact you by means of the Platform. We do not endorse any persons who use or register for the Platform. We do not investigate any user’s reputation, conduct, morality, criminal background, or verify the information such user may submit to the Platform. You agree to exercise caution and good judgment in all interactions with other users. Chowbunga encourages you to communicate directly with users through the tools available on the Platform and to review users’ profile pages for feedback from other users.
2.5 Your Experience with Other Users. You are solely responsible for your interactions with other users of our Platform. We will not be responsible for any damage or harm resulting from your interactions with other users of our Platform. We reserve the right, but have no obligation, to monitor interactions between you and other users of our Platform and to take any other action in good faith to restrict access to or the availability of any material that we or another user of our Platform may consider obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable.
3. User Conduct
In your use of our Platform, you must act responsibly and exercise good judgment. By way of example and not limitation, you shall not:
(a) violate any applicable law or regulation;
(b) infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights;
(c) use information obtained through our Platform for any unauthorized purpose;
(d) interfere with or damage our Platform, 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;
(e) use our Platform 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;
(f) use our Platform in connection with the distribution of spam (which we define as unsolicited bulk e-mail or any other e-mail of a commercial, religious or political or other nature not within the intended purposes of the Platform);
(g) "stalk" or harass any other user of our Platform;
(h) collect or store any information about any other user other than for purposes of the permitted use of our Platform;
(i) use our Platform for any commercial purpose whatsoever;
(j) register for more than one user account or register for a user account on behalf of an individual other than yourself;
(k) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity, whether by providing or omitting to provide information;
(l) attempt to defeat any security or verification measure relating to use of the Platform; or
(m) assist any third party in doing any of the foregoing.
4. Minors May Not Use This Platform.
You must be at least 18 years old to register to use the Platform. By registering to use our Platform, you represent that you are over 18.
5. Payment; Fees
5.1 General. Access to our Platform and use of selected features of our Platform is free. We may charge fees for various premium features and services that we offer, and we will notify you of those charges at the time that we offer you the premium features or services for a fee. We may, in our sole discretion, and by notifying you on our website, change this policy and begin charging for access to our website and other features and services, and we may, in our sole discretion, add, remove or change the features and services we offer or the fees (including the amount or the type of fees) we charge at any time. If we introduce a new service or charge a new fee, we will establish and notify you of the fees for that service at the launch of the service or start of charging a new fee. If we notify you of new fees or change the fees for an existing service, you agree to pay all fees and charges specified and all applicable taxes for your continued use of the applicable service. We are not responsible for any charges or expenses you incur resulting from being billed by us in accordance with these Terms of Service (e.g., overdrawn accounts, exceeding account limits, etc.).
5.2 Fee Structure. In exchange for providing access to and maintaining the Platform, Chowbunga keeps a portion of the Party organizer’s (“Host”) ticket price to attend each Party. As a guest attending a Host’s Party (“Guest”), you agree to pay the amount posted by the Host from whom you have chosen to purchase a ticket. As a Host, posting a Party is free, but you agree to pay Chowbunga our then-current service charge for each purchase made by a Guest. Chowbunga’s Fees Policy, which is subject to change, is available on the Platform at http://www.chowbunga.com/community-guidelines and is hereby incorporated by reference. Changes to the Fees Policy and the fees for Chowbunga’s services are effective after Chowbunga provides you with at least fourteen (14) days’ notice by posting the changes on the Platform. However, Chowbunga may choose to temporarily change the Fees Policy and the fees for Chowbunga’s services for promotional events; such changes are effective when Chowbunga posts the temporary promotional event on the Platform.
5.3 Guest Fee Terms. If you purchase a ticket to attend a Party, you will be asked to provide your credit card information and billing address. Your card will be charged the full amount of such experience at that time. If you are required to provide Chowbunga information regarding your credit card or other payment instrument, you represent and warrant that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If you dispute any charges you must let Chowbunga know within sixty (60) days after the date that we charge you. If Chowbunga terminates your account and use of the Platform because you have breached this Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any).
5.4 Host Fee Terms. If you are a Host, Chowbunga will endeavor to remit Revenue (defined below) to you, less Chowbunga’s applicable fees (as described on the Platform), within 10 days of the date of commencement of the Party. For purposes hereof, “Revenue” shall mean gross revenue actually received by Chowbunga from its sale of Parties hereunder, less taxes, refunds, returns, chargebacks and bad debt. All Revenue will be paid to the Host in accordance with the payment information provided by the Host to Chowbunga through the Platform, and the Host is solely responsible for ensuring such information remains accurate and up to date. If the Host disputes any payments, the Host must inform Chowbunga within sixty (60) days after the date that Chowbunga pays the Host.
5.5 Refunds and Cancellations. Please see Chowbunga’s Refund and Cancellation Policy available on the Platform at http://www.chowbunga.com/community-guidelines. The Refund and Cancellation Policy is hereby incorporated by reference.
5.6 Donations. Some Hosts 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 Host does in fact make the donation they pledged to make.
5.7 Taxes. You shall be responsible for paying any and all taxes applicable to any purchases or sales of tickets to Parties you make on the Platform (excluding any taxes on Chowbunga’s net income).
We understand the concerns that you may have about your privacy and respect your right to protect your personal information while online. However, our Platform is designed to allow users to post photographs and information about themselves for public review and comment. Accordingly, by submitting your photograph and/or any other personal information, you waive any privacy expectations you have with respect to use of such likeness or personal information. If you do not wish to have your picture or information about yourself viewed by or disclosed to others, do not use our Platform. We may collect certain other personal information from you that we do not post on our Platform. In most cases, we do not intentionally transfer this information to unaffiliated third parties without your consent. However, we reserve the right to transfer such information without your consent to prevent an emergency, to protect or enforce our rights, to protect or enforce the rights of a third party or in response to a court order or subpoena as otherwise required or permitted by law. In addition, we provide this personal information to third-party service providers who help us maintain our Platform and deliver information and services to you and other users of our Platform.
7. Your Content
7.1 You Grant Us a License. By submitting any content (including without limitation, your photograph) to our Platform, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, display, perform, adapt, modify, distribute, have distributed and promote such content in any form, in all media now known or hereinafter created and for any purpose.
7.2 Content Restrictions. You are solely responsible for any content that you submit, post or transmit via our Platform. You may not post or submit any content that:
(a) is defamatory;
(b) contains nudity or sexually explicit content;
(c) may disparage any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise;
(d) exploits images or the likeness of individuals under 18 years of age;
(e) depicts use of illicit drugs;
(f) makes use of offensive language or images;
(g) characterizes violence as acceptable, glamorous or desirable;
(h) provides a link to any commercial websites; or
(i) contains any of your personal contact information, except as specifically required or requested as part of your registration on this site.
7.3 No Obligation to Post Content. We have no obligation to post any content from you or anyone else. In addition, we may, in our sole and unfettered discretion, edit, remove or delete any content that you post or submit.
8. Third-Party Content
In using our Platform, you may be exposed to content from other users or third parties ("Third-Party Content"), either at our Platform or through links to third-party websites. We do not control, and shall have no responsibility for, Third-Party Content, including material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You must evaluate, and bear all risks associated with, Third-Party Content, including without limitation, profiles of other users of our Platform.
9. Proprietary Rights
9.1 Our Intellectual Property. All material on our Platform are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, as may be applicable. Except as expressly authorized by us, you may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such material. Notwithstanding the foregoing, you may use such material in the course of your normal, personal, non-commercial use of our Platform.
9.2 Your Use of Our Intellectual Property. You may not systematically retrieve data or other content from our 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" or otherwise. You may not use of any of our trademarks as metatags on other websites, written materials or otherwise. You may not display any portion of our Site in a frame (or any content from our 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 our Site without our written permission.
10. Username and Password
You will select a username and password as part of the registration process. You are solely responsible for the confidentiality and use of your username and password. You must: (a) log off from your account at the end of each session on our Platform; and (b) notify us immediately of any unauthorized use of your username and password or any other breach of security.
We may, in our discretion and without liability to you, with or without cause (such cause may include your breach of these Terms), with or without prior notice and at any time: (a) terminate your access to our Services, (b) deactivate or delete any of your accounts and all related information and files in such accounts and (c) bar your access to any of such files or Services.
12. Discontinuance of Platform
We may, in our discretion and without liability to you, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, any portion of our Platform.
13. Representations and Warranties
You hereby represent and warrant to us that: (a) you have the full power and authority to enter into and perform under this Agreement; (b) your use of our Platform will not infringe the copyright, trademark, right of publicity or any other legal right of any third party; (c) you will comply with all applicable laws in using our Platform and in engaging in all other activities arising from, relating to or connected with this Agreement, including, without limitation, contacting other users of our Platform; and (d) you own or otherwise have all rights necessary to license the content you submit and that the posting and use of your content by us will not infringe or violate the rights of any third party.
14. Disclaimer of Warranties
14.1. IF YOU USE OUR PLATFORM, YOU DO SO AT YOUR SOLE RISK. OUR PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
14.2. WE DO NOT WARRANT THAT (A) OUR PLATFORM WILL MEET YOUR REQUIREMENTS; (B) OUR PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN THROUGH OUR PLATFORM WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR PLATFORM WILL MEET YOUR EXPECTATIONS; (E) ANY INFORMATION YOU PROVIDE OR WE COLLECT WILL NOT BE DISCLOSED TO THIRD PARTIES; OR (F) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.
14.3. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR PLATFORM, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING OUT OF SUCH ACCESS OR TRANSMISSION.
14.4. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM OUR PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
15. Limits on Liability
15.1. WE SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATING TO: (A) THE USE OR INABILITY TO USE OUR PLATFORM; (B) THE COST OF REPLACEMENT OF ANY GOODS, SERVICES OR INFORMATION PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR PLATFORM; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; (D) DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS OR PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF WE KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (E) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR PLATFORM; (F) YOUR OR ANYONE ELSE’S CONDUCT OR ACTS IN CONNECTION WITH THE USE OF THE PLATFORM, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, DEATH OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER REGISTERED USERS OF OUR PLATFORM OR PERSONS INTRODUCED TO YOU BY OUR PLATFORM, WHETHER ON-LINE OR OFF-LINE; OR (G) ANY OTHER MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR PLATFORM OR THIS AGREEMENT.
15.2. WE SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS, WHETHER OR NOT SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL.
15.3. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO WITH OUR SERVICES OR THESE TERMS EXCEED THE SUM OF ONE HUNDRED US DOLLARS ($100).
15.4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF SECTIONS 13 AND 14 MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless us (and each of our officers, directors, members, employees, agents and affiliates) from any claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to your use of our Platform or alleging facts or circumstances that could constitute a breach of any provision of this Agreement by you. If you are obligated to indemnify us, we will have the right, in our sole and unfettered discretion, to control any action or proceeding and determine whether we wish to settle it, and if so, on what terms.
17. Arbitration; Governing Law
At Chowbunga’s or your election, all disputes, claims or controversies arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, that are not resolved by mutual agreement may be finally settled by arbitration in New York County, New York, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect. Unless otherwise agreed by the parties, arbitration will be held before a single commercial arbitrator with substantial experience in resolving commercial contract disputes mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS. The arbitration must commence within 45 days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award shall be made and delivered within 60 days of the conclusion of the arbitration and within 6 months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, you and Chowbunga agree to submit to the exclusive jurisdiction and venue of the courts located within the State of New York. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
This Agreement contains the entire agreement, and supersedes all prior and contemporaneous understandings between the parties. Our failure or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver thereof. The invalidity or unenforceability of any of this Agreement shall not affect the validity or enforceability of any other of this Agreement, all of which shall remain in full force and effect. Chowbunga may assign our rights and delegate our obligations under this Agreement in whole or part to a third party. Headings of sections are for convenience only and shall not be used to limit or construe such sections.
Sections 2.3 (Release), 5 (Payment; Fees), 6 (Privacy), 8 (Intellectual Property), 14 (Disclaimer of Warranty), 15 (Limitation of Liability), 16 (Indemnity), 17 (Arbitration; Governing Law) and 18 (Miscellaneous) shall survive any termination or expiration of this Agreement.
20. Reporting Misconduct
If you interact with another user 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 Chowbunga by contacting us with your police station and report number at [email protected]; provided that your report shall 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
Please contact us at [email protected] to report any violations of this Agreement or to ask any questions regarding this Agreement.