US Shop Terms & Conditions
Last Updated: 22 August 2018
Terms and Conditions
The use by you of the website https://checkout.timeout.com/new-york (the “Website”) and the purchase by you of advertised offers, products, goods and services, experiences and any other promotional based offerings, excluding Table for Two (as defined below) and Events (as defined below) (“Offers”) through the Website is conditional upon your acceptance of these Terms and Conditions available at https://www.timeout.com/usa/shop-terms-and-conditions-08222018 (the “Terms”).
Each time you buy an Offer you are required accept these Terms by clicking on the button marked "I Accept" and you may also be required to accept any specific terms and conditions required by Time Out and/or a Merchant. If you refuse to accept these Terms and/or any additional Merchant terms and conditions, you should not place an order for an Offer through the Website.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “DISPUTE RESOLUTION” SECTION (SECTION 22) BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION “SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND TIMEOUT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
We may revise these Terms at any time by updating this posting. You should check the Website from time to time to review the current Terms and review the terms and conditions of any Offer at the time of purchase as such terms and conditions are binding on you. These Terms are to be read in conjunction with our Privacy Policy https://www.timeout.com/privacy-notice (“Privacy Notice”) and Website terms of use https://www.timeout.com/terms-of-use (“Terms of Use”). In some instances, both these Terms and the terms that appear on the landing page for an Offer will apply to the Offer (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
1. Information about us
The Website is owned and operated by Time Out America LLC (“Time Out” and “we”). Time Out is incorporated in Delaware and its business address is Time Out America LLC, 1540 Broadway, 42nd Floor, New York, NY 10036. Time Out’s EIN # 61-1641727.
2. Purchasing Offers
We negotiate and advertise Offers with various suppliers of goods and services on behalf of our customers. The Offers are conditional upon certain requirements being met and may have specific terms and conditions attached to them, which will be displayed in relation to any specific Offer on the Website. Upon receipt of confirmation from our third-party payment service provider (“Paypal”) that they have received your payment for the Offer, we shall issue you with the voucher code/redemption details for you to redeem the goods or services subject of the Offer directly from the Merchant. We are not the supplier of the goods and/or services under the Offer, the supplier of the goods or services will be a third party (the “Merchant”). We will issue the Offer voucher code/redemption details on the Merchant’s behalf and the Merchant will be solely responsible for supplying the goods and services to you. The Merchant has agreed with us that it will supply the goods and services bought through the Website.
3. Your status
By placing an order through the Website, you confirm that:
(a) You are legally capable of entering into binding contracts; and
(b) You are at least 18 years old (and if the Offer includes alcohol that you are at least 21 years old); and
(c) You grant us an irrevocable, non-exclusive licence to use for any purpose any content you post on the Website or which is otherwise communicated to us via any media.
4. Privacy Policy
Please see Time Out’s Privacy Policy https://www.timeout.com/privacy-notice for a summary of Time Out’s practices regarding the collection and use of personal information on this Website. We may update the Privacy Notice from time to time in our sole discretion and post an updated version of the notice at the website address provided above. Your continued use of this Website after any changes to the Privacy Notice means you accept the changes.
5. How the contract is formed between you and us
Upon receipt of your payment by Paypal following your purchase of the Offer via the Website, we shall confirm your order by sending a voucher code/redemption details to the email address provided, which will include redemption instructions on how to access the goods or services subject of the Offer that you have purchased.
6. Our status
The Merchant is the seller of the goods and/or services under the Offer and is solely responsible for ensuring the Offer and the goods and/or services are performed and comply with all applicable law.
Time Out’s obligations under these Terms are solely to issue you with the voucher code/redemption details for the Offer to the email address you have provided. Time Out is not the seller of such goods and/or services and the Merchant is solely responsible for supplying such goods and/or services and redeeming any such Offer in respect of the same pursuant to their terms and conditions of sale. You will also to be required to accept any specific Merchant terms and conditions applicable to the Offer.
Time Out disclaims any and all responsibility or liability in relation to the Offer or for any goods or services supplied in relation to it to the maximum extent permissible by law. Neither Time Out nor its officers, employees or any third parties may be held liable whether in relation to contract, warranty, tort (including negligence), product liability, tax matters or any other form of liability for any claim, damage or loss, arising from or relating to the provision of all or any goods or services sold or agreed to be supplied pursuant to the Offer.
We may provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking, that products you purchase from third party sellers, or from companies to whose website we have provided a link on our site, will be of satisfactory quality, and any such warranties are disclaimed by us absolutely. This disclaimer does not affect your statutory rights against the third party seller and/or the Merchant. Time Out may disclose the customer information that you provided when purchasing the Offer to the Merchant, if this is required for the Merchant to provide you with the Offer.
7. Refund Policy
There are strictly no refunds and all sales are final (subject to below).
In certain limited circumstances Time Out may (in its sole discretion) need to change, postpone or cancel an Offer at any time and for any reason. Time Out is not liable for any cost or damage of any postponement or cancellation.
If Time Out in its sole discretion offers you a refund due to cancellation of an Offer (which is the only circumstance Time Out will offer a refund), Time Out will notify you of such refund via e-mail within a reasonable period of time. Time Out will endeavor to process the refund of the Offer within a reasonable period of time. All refunds will be processed using the same method used by you to make payment for your Offer.
8. Price and payment
The price of an Offer will be as quoted on our site from time to time, except in cases of obvious error. Prices are subject to sales tax, if applicable.
If there is an obvious pricing error in relation to the Offer which could have reasonably been recognized by you as a mispricing, then we have the right to cancel the purchase of the Offer and issue you with a refund in respect of the same.
9. Third Party Payment Processing
Time Out uses the services of a third-party payment module named Paypal.com (“PayPal”) to process payments securely and limit fraud in connection with credit card transactions or other payment methods through its tokenization solution. When purchasing an Offer you will be required to disclose personal payment information (e.g. credit card number, address, expiration date, etc.) to PayPal. Time Out will not collect, process, keep or store your personal payment information on the Website. The PayPal solution is fully PCI-compliant because it stores a secure token as a reference to the credit card data. PayPal allows customers to store their payment information during the checkout process for future use, giving returning customers the convenience of stored credit cards and rapid checkout. For a summary of the collection and use of payment information collected by Paypal, Time Out recommends you read PayPal’s privacy policy at https://www.paypal.com/us/webapps/mpp/ua/privacy-full. Time Out shall not be liable for any actions or omissions of PayPal.
10. Licence
Time Out grants you a limited license to access and make personal use of the Website. You are permitted to print and download extracts from the Website for your own non-commercial use on the following basis:
(a) No documents or related graphics on the Website are modified in any way;
(b) No graphics on the Website are used separately from the corresponding text; and
(c) Our copyright and trade mark notices and this permission notice appear in all copies.
Unless otherwise stated, the copyright and other intellectual property rights in all material on the Website (including without limitation photographs and graphical images) are owned by us or our licensors. For the purposes of this legal notice, any use of extracts from the Website, other than in accordance with these Terms, for any purpose is prohibited. If you breach any of the terms in this legal notice, your permission to use the Website automatically terminates and you must immediately destroy any downloaded or printed extracts from the Website.
Subject to these Terms, no part of the Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without our prior written permission.
Any rights not expressly granted in these terms are reserved.
11. Service access
While we endeavor to ensure that the Website is available 24 hours a day, we shall not be liable if for any reason the Website is unavailable at any time or for any period. Access to the Website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control.
12. Visitor material and conduct
Your use of the Website must be compliant with these Terms. If you, in our sole discretion, are deemed to have been or are carrying out any of the following prohibited activities, we reserve the right to take such action as we deem necessary, which may, without limitation, include suspension or termination of your account, the revocation of any unredeemed vouchers in connection with the Offers that have been purchased by you and preventing you from re-enrolling or joining the Website under a new account:
(a) Posting or transmitting to or from the Website any material:
i) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience; or
ii) which violates or infringes in any way upon the rights of others; or
iii) for which you have not obtained all necessary licences and/or approvals; or
iv) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or
(b) Misusing the Website (including, without limitation, by hacking) by:
i) creating multiple accounts under your name, any aliases or using accounts as may have been created by other individuals however which, in the sole determination of Time Out, are being managed by you; or
ii) using the Website, any user account, or any content therein for any other commercial purpose, including to compete directly or indirectly with Time Out; or
iii) using the Website, or any user account, to purchase Offers for resale, financial speculation, exceeding quantity limits for purchasing Offers or for any other reason, fraudulent or otherwise, unless expressly permitted under the terms of these Terms; or
iv) using the Website to solicit, advertise to or contact Merchants or Website end-users to become users of any other services provided by or through you which would be directly, indirectly or potentially competitive with Time Out, including, without limitation, offering current or previously offered Offers; or
v) accessing or selling your access to the Website, to repurpose for any reason, Offers that have been purchased through the Website; or
vi) fraudulently reprinting, copying, reproducing or distributing any vouchers in relation to a Offer.
(c) Inputting invalid or incomplete details for the purchase of Offers or creation of user accounts (including without limitation name, address, phone number).
13. Links to and from other websites
We may provide links on the Website to the websites of other companies, whether affiliated with us or not (“Third Party Websites”). Links to Third Party Websites are provided solely for your convenience. If you use these links, you leave the Website. We have not reviewed all of the Third Party Websites and do not control and are not responsible for these websites or their content or availability. We therefore do not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them. If you decide to access any of the Third Party Websites linked to the Website, you do so entirely at your own risk.
We do not give any undertaking that products you purchase from Third Party Websites will be of satisfactory quality and any such warranties are disclaimed by us absolutely. This disclaimer does not affect your statutory rights against the third-party sellers, Third Party Websites and/or the Merchant.
14. Registration
Each registration is for a single user only. We do not permit you to share your user name and password with any other person nor with multiple users on a network. Responsibility for the security of any passwords issued rests with you.
15. Intellectual Property
The Website is the exclusive property of Time Out. Any copying, distributing, transmitting, posting, linking, deep linking or otherwise modifying the Website without the express written permission of Time Out is strictly prohibited. Any violation of this clause may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and criminal penalties.
The Website contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Website are protected by copyright as a collective work under international copyright laws. Time Out may own a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit or participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express written permission of Time Out or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, no changes in or deletion of author attribution, trademark, legend or copyright notice can be made. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Trademarks that are located within or on the Website otherwise owned or operated in conjunction with Time Out shall not be deemed to be in the public domain but rather the exclusive property of Time Out, unless such site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of Time Out unless otherwise stated.
16. Force Majeure
Time Out shall be excused from performance under these Terms to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, terrorism, governmental restrictions or other causes beyond the reasonable control of Time Out.
17. DISCLAIMERS
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, TIME OUT MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF ANY CONTENT ON THE WEBSITE, OR ANY OFFERS PURCHASED THROUGH THE WEBSITE, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. THE SITE AND THE MATERIALS, INFORMATION, SERVICES AND OFFERS ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SITE OR ANY FEATURE OR PART THEREOF AT ANY TIME. TIME OUT DISCLAIMS ANY WARRANTIES THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE SITE WILL BE SECURE; THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE WILL BE VIRUS-FREE; OR THAT INFORMATION ON THE SITE WILL BE CORRECT, ACCURATE, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE COMPLETE. IF YOU DOWNLOAD ANY CONTENT FROM THIS SITE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM THE SITE SHALL CREATE ANY WARRANTY OF ANY KIND. IN CERTAIN JURISDICTIONS, THE LAW MAY NOT PERMIT THE DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
18. LIMITATION OF LIABILITY
THE MERCHANTS WHOSE PRODUCTS AND SERVICES ARE AVAILABLE ON THE WEBSITE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF TIME OUT. TIMEOUT IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH MERCHANTS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITE, COMMUNICATIONS WITH THIRD PARTIES AND MERCHANTS, AND PURCHASE AND USE OF THE PRODUCTS AND SERVICES AVAILABLE THROUGH THE WEBSITE, INCLUDING OFFERS. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE WEBSITE MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK AND THAT THE WEBSITE IS MADE AVAILABLE TO YOU AT NO CHARGE. RECOGNIZING SUCH, YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, CONSUMER PROTECTION LAW), NEITHER TIME OUT NOR ITS LICENSORS OR SUPPLIERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO (1) THIS WEBSITE, OR ANY OTHER WEBSITE OR RESOURCE YOU ACCESS THROUGH A LINK FROM THIS SITE; (2) ANY ACTION WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; (3) YOUR ACCOUNT (4) ANY OFFERS MADE AVAILABLE OR PURCHASED THROUGH THE WEBSITE INCLUDING ANY DAMAGES OR INJURY ARISING FROM ANY USE OF SUCH PRODUCTS OR SERVICES SUBJECT OF THE OFFERS; (5) ANY DELAY OR INABILITY TO USE THE WEBSITE OR ANY INFORMATION, OFFERS, PRODUCTS OR SERVICES ADVERTISED IN OR OBTAINED THROUGH THE WEBSITE; (6) THE MODIFICATION, REMOVAL OR DELETION OF ANY CONTENT SUBMITTED OR POSTED ON THE WEBSITE; OR (7) ANY USE OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF TIME OUT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE OR RESOURCE. THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY OFFER, PRODUCT, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, LOSS OF PROFITS BY YOU, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER TIME OUT NOR ITS LICENSORS, SUPPLIERS OR THIRD PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE WEBSITE. YOUR REMEDY FOR ANY OF THE ABOVE CLAIMS OR ANY DISPUTE WITH TIME OUT IS TO DISCONTINUE YOUR USE OF THE SITE. YOU AND TIME OUT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, TIME OUT’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO YOUR USE OF THIS WEBSITE SHALL BE LIMITED TO THE PRICE PAID FOR THE OFFER OR IF NO PRICE IS PAID FOR THE OFFER THEN FIFTY DOLLARS ($50.00).
19. Indemnity
You agree to defend, indemnify, and hold harmless Time Out and its affiliates and all of their employees, agents, directors, officers, proprietors, partners, representatives, shareholders, attorneys, predecessors, successors, and assigns, from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from: (i) your use of and access to the Website; (ii) any breach by you of these Terms; (iii) your violation of any applicable law or third-party right, including, without limitation, any copyright, property or privacy right. This defense and indemnification obligation will survive these Terms and your use of the Website. Time Out will control the defense of any claim to which this indemnity may apply, and in any event, you shall not in any event settle any matter without the prior written consent of Time Out to be withheld at Time Out’s sole discretion.
20. Dispute Resolution
(a) Agreement to Arbitrate
You and Time Out 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 the use of the Website and associated services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) 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 (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Time Out with written notice of your desire to do so by email at legal@timeout.com or regular mail at Time Out America LLC, 1540 Broadway, 42nd Floor, New York, NY 10036 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Time Out with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Time Out with an Arbitration Opt-out Notice, will be the state and federal courts located in the Southern District of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Time Out with an Arbitration Opt-out Notice, you acknowledge and agree that you and Time Out 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 Time Out 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.
(b) Arbitration Rules
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 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.
(c) 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 Demand for Arbitration form available at https://www.adr.org/aaa/faces/rules/formsearch/conform.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of 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.
(d) Arbitration Location and Procedure
Unless you and Time Out otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Time Out 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.
(e) 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 of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and 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. Time Out will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
(f) Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Time Out will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(g) Changes
Notwithstanding the provisions with regard to changes to these Terms, if Time Out changes this “Dispute Resolution” Section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to legal@timeout.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Time Out’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Time Out in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR TIME OUT WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
21. Digital Millennium Copyright Act
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Time Out reserves the right to remove any material on the Website which allegedly infringes a third party’s copyright. It is Time Out’s policy to terminate in appropriate circumstances subscribers or account holders who have been adjudicated as repeat infringers on our Website and associated services. As per the DMCA, you can send a DMCA take down notice to the Time Out Copyright Agent (designated as such pursuant to the DMCA) named below which must provide at minimum the following information:
- A physical or electronic signature and your full legal name;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit Time Out to locate the material, including at a minimum, if applicable, the URL of the link shown on the Website(s) where such material may be found;
- Your address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
COPYRIGHT AGENT FOR COPYRIGHT NOTICES ONLY SHOULD BE DIRECTED BY EMAIL:
Time Out Legal Department
Email: legal@timeout.com
Non-copyright matters will not be addressed by the copyright agent.
22. Governing Law
These Terms will be construed and enforced in accordance with the laws of the State of New York without respect to its conflict of laws principles.
23. Waiver
Failure to insist on strict performance of any of these Terms will not operate as a waiver of any subsequent default or failure of performance. No waiver by Time Out of any right under these Terms will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.
24. Severability
If any part of these Terms and Conditions is determined to be invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of these Terms shall continue in effect.
25. Relationship
No joint venture, partnership, employment, or agency relationship exists between a User and Time Out as a result of this Agreement.
26. Survival of Terms
Notwithstanding any other provisions of these Terms, any provision of these Terms that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Terms.
27. Entire Agreement
These Terms and Conditions, together with the Time Out Privacy Policy https://www.timeout.com/privacy-notice which is hereby incorporated as if set forth fully herein, represent the entire agreement between the User and Time Out with respect to purchases of Offers made through https://checkout.timeout.com/new-york/ and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between the User and Time Out with respect to purchase of Offers. Any rights not expressly granted herein are expressly reserved.
28. How to Contact Us
Time out America LLC, 1540 Broadway, 42nd Floor, New York, New York 10036 or by email at legal@timeout.com.