Terms of Service
Please read these terms of service carefully as they contain important information regarding your legal rights, remedies and obligations. These include various limitations and exclusions, a clause that governs the jurisdiction and venue of disputes, and obligations to comply with applicable laws and regulations.
In particular, Vendors should understand how the laws work in their respective cities. These laws are often part of a city’s zoning or administrative codes. In many cites, vendors must register, get a permit, or obtain a license before listing Activities or Experiences or accepting Users. Local governments vary greatly in how they enforce these laws. Penalties may include fines or other enforcement. Vendors should review local laws before listing a space on Funlocity.
Last Updated: January 28, 2015
TERMS OF SERVICE
If you are using the Site, Application or Services, you are contracting with Funlocity with respect to use of the Funlocity Site, Application or Services. Funlocity is hereinafter referred to as "Funlocity", "we", "us", or "our".
The site, application and services comprise an online platform through which Vendors (defined below) may create listings (defined below) for Activities or Experiences (defined below) and Users (defined below) may learn about and book Activities or Experiences DIRECTLY WITH THE VENDORS. You understand and agree that FUNLOCITY IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN VENDORS AND USERS, NOR IS FUNLOCITY A REAL ESTATE BROKER, AGENT OR INSURER. FUNLOCITY HAS NO CONTROL OVER THE CONDUCT OF VENDORS, USERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY ACTIVITIES OR EXPERIENCES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Content” means all Content that Funlocity makes available through the Site,
Application, or Services, including any Content licensed from a third party,
but excluding Member Content.
“Booking Request Period” means the time period starting from the time when a booking is requested by a User (as determined by Funlocity in its sole discretion), within which a Vendor may decide whether to confirm or reject that booking request, as stated on the Site, Application or Services. Different Booking Request Periods may apply in different Activities or Experiences.
“Collective Content” means Member Content and Funlocity Content.
“Content” means text, graphics, images, music, software, audio, video, information or other materials.
“Activities or Experiences” means activities including, but not limited to tours.
“Users” means a Member who requests from a Vendor a booking of Activities or Experiences via the Site, Application or Services, or a Member who participates in Activities or Experiences and is not the Vendor for such Activities or Experiences.
“Vendor” means a Member who creates a Listing via the Site.
“Listing” means Activities or Experiences that are listed by a Vendor as available via the Site, Application, and Services.
“Member” means a person who completes Funlocity’s account registration process, including but not limited to Vendors and Users, as described under “Account Registration” below.
“Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), General Excise Tax (GET), transient occupancy taxes, tourist or other visitor taxes, accommodation or lodging taxes, fees (such as convention center fees) that providers of Activities or Experiences may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, OR BY PARTICIPATING IN THE REFERRAL PROGRAM, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR TO PARTICIPATE IN THE REFERRAL PROGRAM. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Funlocity reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
How the Site, Application and Services Work
The Site, Application and Services can be used to facilitate the listing and booking of Activities or Experiences (“Activities or Experiences”). Such Activities or Experiences are included in Listings on the Site, Application and Services by Vendors. You may view Listings as an unregistered visitor to the Site, Application and Services; however, if you wish to book Activities or Experiences or create a Listing, you must first register to create an Funlocity Account (defined below).
As stated above, Funlocity makes available an online platform or marketplace with related technology for Vendors and Users to meet online and arrange for bookings of Activities or Experiences directly with each other. Funlocity is not an owner or operator of Activities or Experiences, including, but not limited to, Activities or Experiences, transportation or other travel services. Unless explicitly specified otherwise in the Funlocity platform, Funlocity’s responsibilities are limited to: (i) facilitating the availability of the Site, Application and Services and (ii) serving as the limited payment collection agent of each Vendor for the purpose of accepting payments from Vendors on behalf of the User.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE VENDORS AND USERS CONNECTING AND BOOKING ACTIVITIES OR EXPERIENCES DIRECTLY WITH EACH OTHER. FUNLOCITY CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY ACTIVITIES OR EXPERIENCES. FUNLOCITY IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND ACTIVITIES OR EXPERIENCES. ACCORDINGLY, ANY BOOKINGS WILL BE MADE AT THE USER’S OWN RISK.
In order to access certain features of the Site and Application, and to book Activities or Experiences or create a Listing, you must register to create an account (“Funlocity Account”) and become a Member. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites (“SNS”) (including, but not limited to, Facebook; each such account, a “Third-Party Account”), via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your Funlocity Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to Funlocity through the Site, Services or Application; or (ii) allowing Funlocity to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Funlocity and/or grant Funlocity access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Funlocity to pay any fees or making Funlocity subject to any usage limitations imposed by such third-party service providers. By granting Funlocity access to any Third-Party Accounts, you understand that Funlocity will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Site, Services and Application via your Funlocity Account and Funlocity Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your Funlocity Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or Funlocity’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Funlocity Account and your Third-Party Accounts, at any time, by accessing the “Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. Funlocity makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and Funlocity is not responsible for any SNS Content.
We will create your Funlocity Account and your Funlocity Account profile page for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Funlocity Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Funlocity reserves the right to suspend or terminate your Funlocity Account and your access to the Site, Application and Services if you create more than one (1) Funlocity Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Funlocity Account, whether or not you have authorized such activities or actions. You will immediately notify Funlocity of any unauthorized use of your Funlocity Account.
Activities or Experiences Listings
As a Member, you may create Listings. To create a Listing, you will be asked a variety of questions about the Activities or Experiences to be listed, including, but not limited to, the location, itinerary, features, and availability of the Activities or Experiences and pricing and related rules and financial terms. In order to be featured in Listings via the Site, Application and Services, all Vendors must have valid physical addresses for the billing and check in location. Listings will be made publicly available via the Site, Application and Services. Other Members will be able to book your Activities or Experiences, or buy a voucher via the Site, Application and Services based upon the information provided in your Listing. You understand and agree that once a User requests a booking of your Activities or Experiences, you may not request the User to pay a higher price than in the booking request.
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or a User's participation in, Activities or Experiences in a Listing you post (i) will not breach any agreements you have entered into with any third parties, and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Activities or Experiences included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that Funlocity assumes no responsibility for a Vendor’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Funlocity reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Funlocity, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Funlocity’s then-current Policies and Community Guidelines (at http://company.funlocity.com/terms/conditions.html), or otherwise harmful to the Site, Application or Services.
If you are a Vendor, you understand and agree that Funlocity does not act as an insurer or as your contracting agent. If a User requests a booking of your Activities or Experiences and participates in your Activities or Experiences, any agreement you enter into with such Vendor is between you and the User and Funlocity is not a party thereto. Not withstanding the foregoing, Funlocity serves as the limited authorized payment collection agent of the Vendor for the purpose of accepting, on behalf of the Vendor, payments from Users of such amounts stipulated by the Vendors (including other fees and/or Taxes).
When you create a Listing, you may also choose to include certain requirements which must be met by the Members who are eligible to request a booking of your Activities or Experiences, including, but not limited to, requiring Members to have a profile picture or verified phone number, in order to book your Activities or Experiences. Any Member wishing to book Activities or Experiences included in Listings with such requirements must meet these requirements.
You acknowledge and agree that, as a Vendor, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who are otherwise present at the Activities or Experiences at your request or invitation, excluding the User (and the individuals the User invites to the Activities or Experiences, if applicable.)
Funlocity recommends that Vendors obtain appropriate insurance for their Activities or Experiences. Please review any insurance policy that you may have for your Activities or Experiences carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Users while participating in your Activities or Experiences.
The vouchers will expire 190 days after the purchase unless stated otherwise on the voucher. The vouchers can’t be combined with other offers or vouchers. Vouchers redeemable for a ticket or admission to a specific ticketed event at a named venue (“Event Tickets”) are revocable licenses and have no value once the event date and time has passed. Event Tickets are only refundable: (i) by request until midnight on day of purchase; (ii) automatically if the event is canceled and not rescheduled, and (iii) upon request if event is rescheduled. Event Tickets: (a) include all taxes and additional fees; (b) do not include gratuity; (c) are ineligible for upgrades, and (d) may not be used in conjunction with other offers.
Vouchers and Event Tickets are only redeemable with the issuing merchant and/or venue, for the goods, services, and/or event identified on the voucher. If merchant or venue refuses to honor any voucher, Funlocity will refund the amount paid upon request.
The vouchers are not redeemable for cash, unless required by law.
Funlocity does not endorse any Member or any Activities or Experiences. Any images uploaded to, or used with respect to the Site, Application or Services are therefore not an endorsement by Funlocity of any Member or any Activities or Experiences. Members are required by these Terms to provide accurate information, and although Funlocity may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any Member or the Member’s purported identity or background.
Any references in the Site, Application or Services to a Member being “verified” or “connected” (or similar language) only indicate that the Member has completed a relevant verification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Funlocity about any Member, including of the Member’s identity and whether the Member is trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Site, Application and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to stay with a Vendor or to accept a booking request from a User, or to have any other interaction with any other Member. Funlocity is not responsible for any damage or harm resulting from your interactions with other Members.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Funlocity with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by a Vendor against Funlocity regarding the remittance of payments received from a User by Funlocity on behalf of a Vendor which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
Bookings and Financial Terms
or Experiences Fees” means the amounts that are due and payable by a User in exchange for that User’s participation in Activities or Experiences.
The Vendor alone, and not Funlocity,
determines these amounts. The Vendor
may in his or her sole discretion decide to include in these amounts (i) any other fee permitted on the Funlocity platform, or
(ii) Taxes that the Vendor
determines that he or she has to collect, or (iii) additional activities
fees including but not limited to fuel charges, etc., as an example.
“User Fees” means the fee that Funlocity charges a User for the use of its online platform, which is calculated as a percentage of the applicable Activities or Experiences Fees. The User Fees will be displayed to the User when the User is asked whether to send a booking request to a Vendor.
“Vendor Fees” means the fee that Funlocity charges a Vendor for the use of its online platform, which is calculated as a percentage of the applicable Activities or Experiences Fees. The Vendor Fees will be displayed to the Vendor when the Vendor is asked whether to confirm or reject a booking request from a prospective User.
“Service Fees” means collectively the User Fees and the Vendor Fees.
“Total Fees” means collectively the Activities or Experiences Fees and the User Fees (plus any Taxes in respect of User Fees).
Bookings and Financial Terms for Vendors
If you are a Vendor and a booking is requested for your Activities or Experiences via the Site, Application and Services, you will be required to either confirm or reject the booking request within the Booking Request Period, otherwise the booking request will be automatically cancelled. When a booking is requested via the Site, Application and Services, we will share with you (i) the first and last name of the User who has requested the booking, (ii) a link to the User’s Funlocity Account profile page, (iii) the names of any members of an SNS with whom you are “friends” or associated on the SNS if such individuals are also “friends” or associated with the User on such SNS, and (iv) an indication that the name that the User provided to Funlocity when the User became a Member matches the name that the User provided to the SNSs to which the User has linked his or her Funlocity Account, so that you can view such information before confirming or rejecting the booking request. If you are unable to confirm or decide to reject a booking request within the Booking Request Period, any amounts collected by Funlocity for the requested booking will be refunded to the applicable User’s credit card and any pre-authorization of such credit card will be released. When you confirm a booking requested by aUser, Funlocity will send you an email, text message or message via the Application confirming such booking, depending on the selections you make via the Site, Application and Services.
Funlocity will collect the Total Fees at the time of booking confirmation (i.e. when the Vendor confirms the booking request) and will initiate payment of the Activities or Experiences Fees (less Funlocity’s Vendor Fees and any Taxes in respect of the Vendor Fees, such as VAT in Europe) to the Vendor within 24 hours of when the Activities or Experiences start (except to the extent that a refund is due to the Vendor). The time it takes for the Vendor to receive payouts may depend upon the method for receiving payouts chosen by the Vendor. Some methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Vendor, including by deducting their charges from the payout amount.
If you owe or agree to pay any amount to Funlocity (whether as a result of your bookings or actions as a User or otherwise), then Funlocity may (but is not obliged to) withhold the amount owing to Funlocity from any payout amounts due to you as a Vendor, and use the withheld amount to set-off the amount owed by you to Funlocity. If Funlocity does so, then your obligation to pay Funlocity will be extinguished to the extent of the amount withheld by Funlocity, and Funlocity will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld.
Appointment of Funlocity as Limited Payment Collection Agent for Vendor
Each Vendor hereby appoints Funlocity as the Vendor’s limited payment collection agent solely for the purpose of accepting the Activities or Experiences Fees from Users.
Each Vendor agrees that payment made by a User through Funlocity, shall be considered the same as a payment made directly to the Vendor, and the Vendor will make the Activities or Experiences available to the User in the agreed-upon manner as if the Vendor has received the Activities or Experiences Fees. Each Vendor agrees that Funlocity may, in accordance with the cancellation policy selected by the Vendor and reflected in the relevant Listing, (i) permit the User to cancel the booking and (ii) refund (via Funlocity) to the User that portion of the Activities or Experiences Fees specified in the applicable cancellation policy. Each Vendor understands that as Funlocity accepts payments from Users as the Vendor’s limited payment collection agent and that Funlocity’s obligation to pay the Vendor is subject to and conditional upon successful receipt of the associated payments from Users. Funlocity does not guarantee payments to Vendors for amounts that have not been successfully received by Funlocity from Users. In accepting appointment as the limited authorized agent of the Vendor, Funlocity assumes no liability for any acts or omissions of the Vendor.
Please note that Funlocity does not currently charge fees for the creation of Listings. However, you as a Vendor acknowledge and agree that Funlocity reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that Funlocity will provide notice of any Listing fee collection via the Site, Application and Services, prior to implementing such a Listing fee feature.
Bookings and Financial Terms for Users
The Vendors, not Funlocity, are solely responsible for honoring any confirmed bookings or vouchers and making available any Activities or Experiences reserved through the Site, Application and Services. If you, as a User, choose to enter into a transaction with a Vendor for the booking of Activities or Experiences, you agree and understand that you will be required to enter into an agreement with the Vendor and you agree to accept any terms, conditions, rules and restrictions associated with such Activities or Experiences imposed by the Vendor. You acknowledge and agree that you, and not Funlocity, will be responsible for performing the obligations of any such agreements, that Funlocity is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Funlocity disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that Funlocity is not a party to the agreement between you and the Vendor, Funlocity acts as the Vendor’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Vendor. Upon your payment of the Total Fees to Funlocity, your payment obligation to the Vendor for the Activities or Experiences Fees is extinguished, and Funlocity is responsible for remitting the Activities or Experiences Fees (less the Vendor Fees and any Taxes in respect of the Vendor Fees), in the manner described in these Terms. In the event that Funlocity does not remit any such amounts as described in these Terms, such Vendor will have recourse only against Funlocity.
The Total Fees payable will be displayed to a User before the User sends a booking request to a Vendor. As noted above, the Vendor is required to either confirm or reject the booking request within the Booking Request Period, otherwise the requested booking will be automatically cancelled. If a requested booking is cancelled (i.e. not confirmed by the applicable Vendor), any amounts collected by Funlocity Payments will be refunded to such User, depending on the selections the User makes via the Site and Application, and any pre-authorization of such User’s credit card will be released, if applicable.
You as a User agree to pay Funlocity for the Total Fees for any booking requested in connection with your Funlocity Account if such requested bookings are confirmed by the applicable Vendor. In order to establish a booking pending the applicable Vendor’s confirmation of your requested booking, you understand and agree that Funlocity, on behalf of the Vendor, reserve the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. Once Funlocity receives confirmation of your booking from the applicable Vendor, Funlocity will collect the Total Fees in accordance with these Terms and the pricing terms set forth in the applicable Listing. Please note that Funlocity cannot control any fees that may be charged to a User by his or her bank related to Funlocity’s collection of the Total Fees, and Funlocity disclaims all liability in this regard.
In consideration for the use of Funlocity’s online marketplace and platform, Funlocity charges the Service Fees. Where applicable, Taxes may also be charged in respect of the Vendor Fees and User Fees. Funlocity deducts the Vendor Fees from the Activities or Experiences Fees before remitting the balance to the Vendor as described in these Terms. User Fees are, as noted above, included in the Total Fees.
Balances will be remitted by Funlocity to Vendors via check, PayPal, Stripe, direct deposit or other payment methods described on the Site or via the Application, in the Vendor’s currency of choice, depending upon the selections the Vendor makes via the Site, Application and Services. Amounts may be rounded up or down as described the “Rounding Off” section below.
Please note that Funlocity, may impose or deduct foreign currency processing costs on or from any payments or payouts by Funlocity in currencies other than U.S. dollars. More information on any such costs or deductions will be available via the Site and Application. More information on any such costs or deductions will be available via the Site and Application. Except as otherwise provided herein, Service Fees are non-refundable.
General Booking and Financial Terms
Cancellations and Refunds
If, as a User, you cancel your requested booking before the requested booking is confirmed by a Vendor, Funlocity will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested booking within a commercially reasonable time. If, as a User, you wish to cancel a confirmed booking made via the Site, Application and Services, either prior to or after starting the Activities or Experiences, the cancellation policy of the Vendor contained in the applicable Listing will apply to such cancellation. Our ability to refund the Activities or Experiences Fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Details regarding refunds and cancellation policies are available via the Site and Application. The User Fee is non-refundable regardless of the cancellation policy selected by the Vendor.
If a Vendor cancels a confirmed booking made via the Site, Services, and Application, (i) Funlocity will refund the Total Fees for such booking to the applicable User within a commercially reasonable time of the cancellation and (ii) the User will receive an email or other communication from Funlocity containing alternative Listings and other related information. If the User requests a booking from one of the alternative Listings and the Vendor associated with such alternative Listing confirms the User’s requested booking, then the User agrees to pay Funlocity the Total Fees relating to the confirmed booking for the Activities or Experiences in the alternative Listing, in accordance with these Terms. If a Vendor cancelled a confirmed booking and you, as a User, have not received an email or other communication from Funlocity, please contact Funlocity at http://www.funlocity.com/help/contact_us.
If, as a Vendor, you cancel a confirmed booking, Funlocity may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee (to be withheld from your future payouts). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.
In certain circumstances, Funlocity may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the Site, Application and Services. Funlocity may also determine, in its sole discretion, to refund to the User part or all of the amounts charged to the User. You agree that Funlocity and the relevant User or Vendor will not have any liability for such cancellations or refunds.
Payment Processing Errors
We will take steps to rectify any payment
processing errors that we become aware of. These steps may include crediting or
debiting (as appropriate) the same payment method used for the original payout
to or payment by you, so that you end up receiving or paying the correct
Tax regulations may require us to collect appropriate tax information from our Vendors, or to withhold taxes from payouts to Vendors, or both. For instance, IRS regulations stipulate that we must collect an IRS Form W-9 from our US Vendors, and an appropriate IRS Form W-8 (e.g. Form W-8BEN) from non-US Vendors with at least one Listing in the US. You as a Vendor are solely responsible for keeping the information in your tax forms current, complete and accurate. If you as a Vendor fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold payments to you (e.g. where you are a US Vendor and you fail to provide us with a completed IRS Form W-9), we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both.
You as a Vendor understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Funlocity cannot and does not offer Tax-related advice to any Members.
Funlocity’s online platform facilitates bookings between Users and Vendors who may prefer to pay and to receive payments in different currencies, which may require foreign currency conversions to accommodate these differing currency preferences. Although the Funlocity platform allows users to view the price of Listings in a number of currencies, the currencies available for users to make and receive payments may be limited, and may not include the default currency in any given geographic location.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Collective Content. In connection with your use of the Site, Application, Services and Collective Content, you may not and you agree that you will not:
● use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Collective Content;
● use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
● copy, store or otherwise access any information contained on the Site, Application, Services or Collective Content for purposes not expressly permitted by these Terms;
● infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
● interfere with or damage our Site, Application or 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 our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
● use our Site, Application, Services or Collective Content in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;
● use automated scripts to collect information from or otherwise interact with the Site, Application, Services or Collective Content;
● use the Site, Application, Services or Collective Content to find a Vendor or User and then complete a booking of Activities or Experiences independent of the Site, Application or Services, in order to circumvent the obligation to pay any Service Fees related to Funlocity’s provision of the Services or for any other reasons;
● as a Vendor, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honor;
● post, upload, publish, submit or transmit any Content that: (i) 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; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
● systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
● use, display, mirror or frame the Site, Application, Services or Collective Content, or any individual element within the Site, Application, Services or Collective Content, Funlocity’s name, any Funlocity trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, Application or Services, without Funlocity’s express written consent;
● access, tamper with, or use non-public areas of the Site, Application or Services, Funlocity’s computer systems, or the technical delivery systems of Funlocity’s providers;
● attempt to probe, scan, or test the vulnerability of any Funlocity system or network or breach any security or authentication measures;
● avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Funlocity or any of Funlocity’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
● forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
● attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
● advocate, encourage, or assist any third party in doing any of the foregoing.
Funlocity has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
Funlocity may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Funlocity or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Funlocity, its users, or memebrs of the public . You acknowledge that Funlocity has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Funlocity reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Funlocity, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of Funlocity and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content.
Subject to your compliance with these Terms, Funlocity grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Funlocity reserves all rights in the Application not expressly granted to you by these Terms.
Funlocity Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, Funlocity grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Funlocity Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Funlocity or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to Funlocity a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, 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, by means of or to promote or market the Site, Application and Services. Funlocity does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and 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 Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Funlocity the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Funlocity’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and 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.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Funlocity is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Funlocity of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Funlocity used herein are trademarks or registered trademarks of Funlocity. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at email@example.com or through the “Contact” (http://www.funlocity.com/help/contact_us) section of the Site and Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of Funlocity and you hereby irrevocably assign to Funlocity and agree to irrevocably assign to Funlocity all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Funlocity’s request and expense, you will execute documents and take such further acts as Funlocity may reasonably request to assist Funlocity to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Funlocity respects copyright law and expects its users to do the same. It is Funlocity’s policy to terminate in appropriate circumstances the Funlocity Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. You acknowledge and agree that, as a Vendor and a User, you are responsible for the copyright of the photos you upload or are otherwise used with respect to the Funlocity website, Application or Services.
If you are registering as an affiliate, you are solely responsible for keeping all information up to date including postal and email addresses, name, payment information, tax information and any other personal information that will impact the ability to issue a valid payment. Each Affiliate is required to submit an accurate and up to date W-8/W-9 tax form. Your tax information is required to be on file in order for your referral fees to accrue and become payable.
Also, affiliates are responsible for any and all fees, taxes, exchange rates, surcharges and other expenses incurred in order to receive their referral fees.
During participation in Funlocity’s affiliate program and for a period of two (2) years the date of termination of the Affiliate’s participation, Affiliate shall not, directly or indirectly, be employed by, perform any service for, or hold any ownership interest in any business engaged in the business that competes, either directly or indirectly, in any manner, with Funlocity or any of its products or services.
Suspension, Termination and Funlocity Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Funlocity Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Funlocity Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Application, Services, your Funlocity Account, your Member Content, or receive assistance from Funlocity Customer Service, (b) any pending or accepted future bookings as either Vendor or User will be immediately terminated, (c) we may communicate to your Users or Vendors that a potential or confirmed booking has been cancelled, (d) we may refund your Users in full for any and all confirmed reservations, irrespective of preexisting cancellation policies, (e) we may contact your Users to inform them about potential alternate Activities or Experiences with other Vendors that may be available on the Site, Application and Services, and (f) you will not be entitled to any compensation for reservations or bookings (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your Funlocity Account. You may cancel your Funlocity Account at any time via the “Cancel Account” feature of the Services or by sending an email to firstname.lastname@example.org. Please note that if your Funlocity Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT AND PARTICIPATE IN THE REFERRAL PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT FUNLOCITY DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, USERS AND VENDORS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FUNLOCITY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FUNLOCITY MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY ACTIVITIES OR EXPERIENCES, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FUNLOCITY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, ACTIVITIES OR EXPERIENCES, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, SERVICES OR REFERRAL PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FUNLOCITY OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY VENDORS OR USERS. YOU UNDERSTAND THAT FUNLOCITY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR VISIT ANY ACTIVITIES OR EXPERIENCES. FUNLOCITY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, USERS AND VENDORS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY FUNLOCITY. NOTWITHSTANDING FUNLOCITY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE VENDORS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM USERS ON BEHALF OF THE VENDORS, FUNLOCITY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTY.
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 SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY ACTIVITIES OR EXPERIENCES VIA THE SITE, APPLICATION AND SERVICES, YOUR PARTICIPATION IN THE REFERRAL PROGRAM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF FUNLOCITY WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER FUNLOCITY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT OR THE REFERRAL PROGRAM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM OR FROM YOUR LISTING OR BOOKING OF ANY ACTIVITIES OR EXPERIENCES VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FUNLOCITY 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.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE VENDORS PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE FUNLOCITY VENDOR GUARANTEE, IN NO EVENT WILL FUNLOCITY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY ACTIVITIES OR EXPERIENCES VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM AND IN CONNECTION WITH ANY ACTIVITIES OR EXPERIENCES OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A USER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A VENDOR, THE AMOUNTS PAID BY FUNLOCITY TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FUNLOCITY AND YOU. 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.
You agree to release, defend, indemnify, and hold Funlocity and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, 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, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking of Activities or Experiences, or (iii) creation of a Listing; (d) and the use, condition or rental of Activities or Experiences by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a booking or participation of Activities or Experiences.
These Terms constitute the entire and exclusive understanding and agreement between Funlocity and you regarding the Site, Application, Services, Collective Content, Referral Program, and any bookings or Listings of Activities or Experiences made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Funlocity and you regarding bookings or listings of Activities or Experiences, the Site, Application, Services, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Funlocity’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Funlocity may assign or transfer these Terms, at its sole discretion, 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 permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Funlocity (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Hawaii and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a State court located in Hawai`i, City and County of Honolulu, or a United States District Court for the District of Hawai`i, for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
You and Funlocity agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, “Disputes”) will be settled by binding arbitration , except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Funlocity are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Funlocity otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://adr.org/aaa/ShowPDF?doc=ADRSTG_004314.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Funlocity otherwise agree, the arbitration will be conducted in Hawai`i, City and County of Honolulu. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Funlocity submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
The failure of Funlocity to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Funlocity. 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. If for any reason an arbitrator or 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.
If you have any questions about these Terms or any App Store Sourced Application, please contact Funlocity at email@example.com.