Last Updated: May 01, 2023
For previous versions of the Terms of Services Agreement, see here.
WELCOME TO WAY! THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND KOUTO INC., DOING BUSINESS AS WAY (“WAY,” “KOUTO,” “WE,” “US,” OR “OUR”) GOVERNING YOUR ACCESS TO AND USE OF THIS WEBSITE, INCLUDING ANY SUBDOMAINS THEREOF, AND ANY OTHER WEBSITES THROUGH WHICH WAY MAKES ITS SERVICES AVAILABLE (COLLECTIVELY, THE “WEBSITE") AND THE SERVICES AND RESOURCES AVAILABLE ON OR ENABLED VIA THE WEBSITE (COLLECTIVELY, THE “SERVICES,” AND TOGETHER WITH THE WEBSITE, THE “PLATFORM”). THE PLATFORM PROVIDES A MARKETPLACE TO ALLOW USERS TO OFFER TO SELL, SELL AND BUY SERVICES.
THESE TERMS ALONG WITH ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”), GOVERN YOUR ACCESS TO AND USE OF THE PLATFORM. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH WAY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR SUCH LEGAL ENTITY, AS APPLICABLE. IF YOU, OR IF APPLICABLE, SUCH LEGAL ENTITY, DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU, AND IF APPLICABLE, SUCH LEGAL ENTITY, MAY NOT ACCESS OR USE ANY OF KOUTO PROPERTIES.
NOTE, IF YOU ARE A BRAND (AS DEFINED BELOW), YOUR ACCESS AND USE OF THE KOUTO PROPERTIES SHALL NOT BE GOVERNED BY THIS AGREEMENT, BUT RATHER THE SEPARATELY EXECUTED AGREEMENT BETWEEN YOU AND WAY.
WAY RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME IN ITS SOLE DISCRETION IN ACCORDANCE WITH THIS PROVISION. IF WE MAKE CHANGES TO THE AGREEMENT, WE WILL POST THE REVISED AGREEMENT ON THE WEBSITE OR IN THE PLATFORM AND UPDATE THE “LAST UPDATED” DATE AT THE TOP OF THE TERMS. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE WEBSITE OR PLATFORM AND, IF YOU HAVE AN ACCOUNT, WE WILL ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION. ANY CHANGES TO THE AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE PLATFORM AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF WAY PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH WAY MAY REQUIRE BEFORE FURTHER USE OF THE PLATFORM IS PERMITTED. IF YOU DISAGREE WITH THE REVISED AGREEMENT, YOU MUST IMMEDIATELY STOP USING THE PLATFORM UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. IF YOU DO NOT TERMINATE YOUR AGREEMENT BEFORE THE DATE THE REVISED AGREEMENT BECOMES EFFECTIVE, YOUR CONTINUED ACCESS TO OR USE OF THE PLATFORM WILL CONSTITUTE ACCEPTANCE OF THE REVISED AGREEMENT. PLEASE REGULARLY CHECK THE WEBSITE AND PLATFORM TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT WAY’S CONTINUED PROVISION OF THE PLATFORM IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
Your use of the Platform may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.”
1.1. The Platform is an online software platform that enables certain third parties such as hotels, resorts, retail brands, and media companies, who have contracted with Kouto (“Brands”) to create, manage, curate, and sell activities, services, excursions, adventures (“Experiences”) hosted by individuals (the “Hosts”) to other individuals or groups of consumers (“Participants”) who wish to partake in the Experiences. Hosts, Brands, and Participants may collectively be referred to as the “Users” here forward.
1.2. Way provides a marketplace that allows Users to offer, sell and buy services. As a marketplace, Way does not directly sell, resell, provide, control, manage, offer, deliver, or supply any Experiences, so all contracts for sale are directly between the Users. Way does not take part in the interaction between Users. Brands and Hosts alone are responsible for their Experiences. When Users make or accept a booking, they are entering into a contract directly with each other. Way is not and does not become a party to or other participant in any contractual relationship between Brands, Hosts, and Participants.
1.3. While we may help facilitate the resolution of disputes, Way has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Experiences, (ii) the truth or accuracy of any Experiences descriptions, ratings, reviews, or other Content (as defined below), or (iii) the performance or conduct of any Users or third party, including without limitation the ability of any Brand or Host to provide the Experiences, the ability of Brands or Participants to pay for the Experiences, and that the Users will actually complete the transaction. Way does not endorse any Users or Experiences. You should always exercise due diligence and care when deciding whether to participate in an Experience or communicate and interact with other Users, whether online or in person.
1.4. Translated Content: To assist Users who speak different languages, Experiences and other Content may be translated, in whole or in part, into other languages. Way cannot guarantee the accuracy or quality of such translations and Users are responsible for reviewing and verifying the accuracy of such translations. The Platform may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose and non-infringement.
1.5. Third-Party Services: The Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Way is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Way of such Third-Party Services.
1.6. Disclaimers; Reservation of Rights: Due to the nature of the Internet, Way cannot guarantee the continuous and uninterrupted availability and accessibility of the Platform. Way may restrict the availability of the Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Platform. Way may improve, enhance and modify the Platform and introduce new Way services from time to time. You acknowledge and agree that Way may update the Platform with or without notifying you. You may need to update third-party software from time to time in order to use the Platform.
Way may, at our sole discretion, make access to and use of the Platform, or certain areas or features of the Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria.
1.7. Maps: Some areas of the Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
1.8. Eligibility: In order to access and use the Platform or register for a Way Account (defined below) you must be an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts and not a person barred from using Way Properties under the laws of the United States, your place of residence, or any other applicable jurisdiction.
1.9. No User Verification: User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any User’s identity. For transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Users to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Users, (ii) screen Users against third party databases or other sources and request reports from service providers. Despite the above, we cannot confirm that each User is who they claim to be. Way does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Platform. WAY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM. WAY WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM OR EXPERIENCES.
1.10. Insurance Disclaimer: Way recommends that Brands obtain appropriate insurance for their Experiences and Hosts, but cannot and do not guarantee Brands have appropriate insurance in place.
2.1. You must register an account ("Way Account") to access and use certain features of the Platform, such as publishing or booking an Experience. If you are registering a Way Account for a business, organization or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in this Agreement.
2.2. You can register a Way Account using an email address and creating a password.
2.3. You must provide accurate, current and complete information during the registration process and keep your Way Account and public Way Account profile page information up-to-date at all times. You agree not to create a Way Account using a false identity or information, or on behalf of someone other than yourself. If you provide any information that is untrue, inaccurate, not current or incomplete, or Way has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Way has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create a Way Account or use the Platform if you have been previously removed by Way, or if you have been previously banned from any Website.
2.4. You may not register more than one (1) Way Account unless Way authorizes you to do so. You may not assign or otherwise transfer your Way Account to another party.
2.5. You are responsible for maintaining the confidentiality and security of your Way Account credentials and may not disclose your credentials to any third party. You must immediately notify Way if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Way Account. You are liable for any and all activities conducted through your Way Account. You agree that you shall monitor your Way Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Platform by minors.
2.6. Way may enable features that allow you to authorize other Users or certain third parties to take certain actions that affect your Way Account. For example, we may enable Users to link their Way Accounts to businesses and take actions for those businesses, we may enable eligible Users or certain third parties to book Experiences on behalf of other Users. These features do not require that you share your credentials with any other person. No third party is authorized by Way to ask for your credentials, and you shall not request the credentials of another Member.
3.1. Way may, at its sole discretion, enable Users to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Platform ("User Content"); and (ii) access and view User Content and any content that Way itself makes available on or through the Platform, including proprietary Way content and any content licensed or authorized for use by or through Way from a third party ("Way Content" and together with User Content, " Content").
3.2. The Platform, Way Content, and User Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Platform and Way Content, including all associated intellectual property rights, are the exclusive property of Way and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform, Way Content or User Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Way used on or in connection with the Platform and Way Content are trademarks or registered trademarks of Way in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Platform and Content are used for identification purposes only and may be the property of their respective owners.
3.3. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform or any Content, except to the extent you are the legal owner of certain User Content or as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Way or its licensors, except for the licenses and rights expressly granted in this Agreement.
3.4. Subject to your compliance this Agreement, Way grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) use the Platform on your personal device(s); and (ii) access and view any Content made available on or through the Platform and accessible to you, solely for your personal or internal business purpose and non-commercial use.
3.5. By creating, uploading, posting, sending, receiving, storing, or otherwise making available any User Content on or through the Platform, you grant to Way a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such User Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such User Content to provide and/or promote the Platform, in any media or platform. Unless you provide specific consent, Way does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use or exploit your User Content.
3.6. You are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to Way the rights in and to such User Content, as contemplated under these Terms; and (ii) neither your User Content nor your posting, uploading, publication, submission or transmittal of your User Content or Way's use of your User Content (or any portion thereof) as contemplated under this Agreement 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.
3.7. You will not post, upload, publish, submit or transmit any User Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances. Way may, without prior notice, remove or disable access to any User Content that Way finds to be in violation of applicable law, this Agreement or otherwise may be harmful or objectionable to Way, its Users, third parties, or property.
Way uses Stripe, Inc. (“Payment Processor”) as its third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). Your use of the Platform and the payment processing provided by the Payment Processor is subject to the Stripe Connected Account Agreement that includes the Stripe Services Agreement found here https://stripe.com/legal, as may be modified by the Payment Processor from time to time (collectively, the “Payment Processor Agreement”). As a condition of using the Payment Processor’s payment processing, you must provide accurate and complete information, and you authorize us to share this information with the Payment Processor. All bank and credit card information is sent directly to and stored with the Payment Processor using its security protocols. Way does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Your use of the Payment Processor’s payment processing is conditioned upon your compliance with the Payment Processor Agreement, and if the Payment Processor Agreement is terminated by the Payment Processor, you may not be able to use the Platform, or you may have your Account suspended or terminated. We may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions.
5.1. Participant Fees and Payments.
5.1.1. Participant Fees. Way may charge fees to Participants ("Participant Fees") in consideration for the use of the Platform. Any applicable Participant Fees will be displayed to a Participant prior to booking an Experience. Way reserves the right to change the Participant Fees at any time. Such fee changes will not affect any bookings made prior to the effective date of the fee change. Participants are responsible for paying any Participant Fees that are owed to Way. The applicable Participant Fees (including any applicable taxes) are collected by Way.
5.1.2. Experience Pricing. Brands are responsible for listing all prices for Experiences on the Platform (“Experience Price”). Participants are contracting directly with Brands for the provision of Experiences through the Platform. You are entering into a legally binding agreement with the Brand, subject to any additional terms and conditions of the Brand that apply, including in particular the applicable cancellation policy and any rules and restrictions specified in the Experience. Way is not a party to any such sales. Way facilitates these sales through hosting the Platform and by facilitating the exchange of money as described below. You understand and agree that Way itself does not process the transmission of funds and thus it is not a separate and discrete service that Way provides in addition to the Platform. You agree to pay the Experience Price for any booking made in connection with your Account.
5.1.3. Refunds. Way has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Way or Users, in each case in Way’s sole discretion.
5.1.4. Taxes. The amounts paid under this Agreement do not include any Sales Tax that may be due in connection with any services provided under this Agreement. If Way determines it has a legal obligation to collect Sales Tax from a User in connection with this Agreement, Way shall collect such Sales Tax in addition to the amounts required under this Agreement. If any services, or payments for any services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Way, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Way for any liability or expense Way may incur in connection with such Sales Taxes. Upon Way’s request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5.2. Booking Experiences.
5.2.1. Additional Participants. If you book an Experience on behalf of additional participants, you are required to ensure that every additional participant meets any requirements set by the Host and/or Brand and is made aware of and agrees to this Agreement and any terms and conditions, rules and restrictions set by the Host and/or Brand. If you are booking for an additional participant who is a minor, you represent and warrant that you are legally authorized to act on behalf of the minor. Minors may only participate in an Experience if accompanied by an adult who is responsible for them.
5.2.2. Terms and Conditions for Experiences. You should carefully review the description of any Experience you intend to book to ensure you (and any additional participants you are booking for) meet any minimum age, proficiency, fitness or other requirements which the Host and/or Brand has specified in their Experience. At your sole discretion you may want to inform the Host and/or Brand of any medical or physical conditions, or other circumstances that may impact your and any additional participant’s ability to participate in any Experience. In addition, certain laws, like the minimum legal drinking age in the location of the Experience, may also apply. You are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to your participation in an Experience.
5.2.3. Cancellations, Modifications and Refunds. Any policies, rules, restrictions and considerations for modifications, cancellations and refunds will be governed by the Brand and/or Hosts. Participants are responsible for any modifications to a booking that they make via the Platform and agree to pay any additional fees associated with such Booking modifications. For questions, disputes, or to request a modification, cancellation, or refund, Participants should contact the Brand and/or Host directly. Way does not have any involvement with establishing the policies associated with any Experience made available on the Platform.
5.3. Disclaimers. YOU AGREE THAT YOU HAVE HAD WHATEVER OPPORTUNITY YOU DEEM NECESSARY TO INVESTIGATE THE PLATFORM, LAWS, RULES, OR REGULATIONS THAT MAY BE APPLICABLE TO YOUR EXPERIENCES AND THAT YOU ARE NOT RELYING UPON ANY STATEMENT OF LAW OR FACT MADE BY WAY RELATING TO AN EXPERIENCE.
YOU AGREE THAT SOME EXPERIENCES MAY CARRY INHERENT RISK, AND BY PARTICIPATING IN SUCH EXPERIENCES, YOU CHOOSE TO ASSUME THOSE RISKS VOLUNTARILY. FOR EXAMPLE, SOME EXPERIENCES MAY CARRY RISK OF ILLNESS, BODILY INJURY, DISABILITY, OR DEATH, AND YOU FREELY AND WILLFULLY ASSUME THOSE RISKS BY CHOOSING TO PARTICIPATE IN THOSE EXPERIENCES. YOU ASSUME FULL RESPONSIBILITY FOR THE CHOICES YOU MAKE BEFORE, DURING AND AFTER YOUR PARTICIPATION IN AN EXPERIENCE. IF YOU ARE BRINGING A MINOR AS AN ADDITIONAL PARTICIPANT, YOU ARE SOLELY RESPONSIBLE FOR THE SUPERVISION OF THAT MINOR THROUGHOUT THE DURATION OF YOUR EXPERIENCE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS WAY FROM ALL LIABILITIES AND CLAIMS THAT ARISE IN ANY WAY FROM ANY INJURY, DEATH, LOSS OR HARM THAT OCCURS TO THAT MINOR DURING THE EXPERIENCE OR IN ANY WAY RELATED TO YOUR EXPERIENCE.
6.1. Independent Contractors. If you choose to use the Platform as a Host, your relationship with Way is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Way for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Way. Way does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of the Experiences. You acknowledge and agree that you have complete discretion whether to list Experiences or otherwise engage in other business or employment activities.
6.2. Equipment. A Brand and/or Host, as decided between such parties, is responsible for acquiring all equipment, including supplies, vehicles, venues and other materials necessary to host your Experience. You are solely responsible for ensuring that the items used in your Experience are in good working order and conforms to all laws pertaining to safety, equipment, inspection, and operational capability. Except as otherwise required by law, you assume all risk of damage or loss to these items.
6.3. Curated Hosts. If you are a Host recruited by Way for specific Experiences offered by Brands (“Curated Hosts”), you shall be subject to the Supplemental Terms for Curated Hosts; as well as these Terms.
Within a certain timeframe after completing a booking, Participants can leave a public review (“Review”) and submit a star rating (“Rating”) about an Experience. Ratings or Reviews reflect the opinions of individual Users and do not reflect the opinion of Way. Ratings and Reviews are not verified by Way for accuracy and may be incorrect or misleading. Ratings and Reviews must be accurate and may not contain any offensive or defamatory language. Users are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another User. Ratings and Reviews are part of a Brand’s and Host’s public profile and may also be surfaced elsewhere on the Platform. Ratings and Reviews you submit shall be considered your User Content for purposes of this Agreement.
8.1. You are solely responsible for compliance with any and all laws, rules, regulations, and obligations that may apply to your use of the Platform. Without limiting the foregoing, in connection with your use of the Platform, you will not and will not assist or enable others to:
- license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform;
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or this Agreement;
- copy, store or otherwise access or use any information, including personally identifiable information about any other User, contained on the Platform in any way that is inconsistent with this Agreement or that otherwise violates the privacy rights of Users or third parties;
- use the Platform in connection with the distribution of unsolicited commercial messages ("spam");
- use the Platform to request, make or accept a booking independent of the Platform, to circumvent any Participant Fees or any other obligation or right granted to Way, or for any other reason;
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
- use, display, mirror or frame the Platform, or any individual element within the Platform, Way's name, any Way trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Platform, without Way's express written consent;
- dilute, tarnish or otherwise harm the Way brand in any way, including through unauthorized use of Content, registering and/or using Way or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Way domains, trademarks, taglines, promotional campaigns or Way Content;
- use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Platform for any purpose;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Way or any of Way's providers or any other third party to protect the Platform;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform;
- take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Platform; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
Any future release, update or other addition to the Platform shall be subject to the Agreement. Way, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Platform terminates the licenses granted by Way pursuant to the Agreement.
8.2. You acknowledge that Way has no obligation to monitor the access to or use of the Platform by any User or to review, disable access to, or edit any User Content, but has the right to do so to (i) operate, secure and improve the Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Users’ compliance with this Agreement; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to User Content that it determines is harmful or objectionable; or (v) as otherwise set forth in this Agreement. Users agree to cooperate with and assist Way in good faith, and to provide Way with such information and take such actions as may be reasonably requested by Way with respect to any investigation undertaken by Way or a representative of Way regarding the use or abuse of the Platform.
9.1. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Platform, unless terminated earlier in accordance with the Agreement. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Platform or (b) the date you accepted the Agreement, and that the Agreement will remain in full force and effect while you use any Platform, unless earlier terminated in accordance with the Agreement.
9.2. Hosts and Participants may terminate this Agreement at any time by sending us an email and closing your Account on the Platform. If you cancel your Way Account as a Participant, any confirmed booking(s) will be automatically cancelled and any refund will depend upon the terms of the Brand’s cancellation policy.
9.3. When this Agreement has been terminated, you are not entitled to a restoration of your Way Account or any of your User Content. If your access to or use of the Platform has been limited or your Way Account has been suspended or this Agreement has been terminated by us, you may not register a new Way Account or access and use the Platform in any manner, including without limitation through a Way Account of another User. In the event that you violate the immediately preceding sentence, Way reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
9.4. Any provision in this Agreement which by its nature should survive shall survive any termination or expiration of this Agreement, including without limitation Sections 5.3, 8, 9.3, 9.4, and 10-17.
Way reserves the right to: (a) remove or refuse to post any of your User Content for any or no reason in our sole discretion; (b) take any action with respect to any of your User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Platform or the public, or could create liability for Way; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform; and/or (e) terminate or suspend your access to all or part of the Platform for any or no reason, including without limitation, any violation of this Agreement.If Way becomes aware of any possible violations by you of the Agreement, Way reserves the right to investigate such violations. If, as a result of the investigation, Way believes that criminal activity has occurred, Way reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Way is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Platform, including your User Content, in Way’s possession in connection with your use of the Platform, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement; (iii) respond to any claims that your User Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Way, its Users or the public, and all enforcement or other government officials, as Way in its sole discretion believes to be necessary or appropriate.
11.1 AS IS. IF YOU CHOOSE TO USE THE PLATFORM, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WAY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, AND LICENSORS (“WAY PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE PLATFORM.
(A) WAY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE PLATFORM, AND OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
(B) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(C) THE PLATFORM MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WAY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE PLATFORM, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE PLATFORM.
(D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WAY OR THROUGH THE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(E) FROM TIME TO TIME, WAY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT WAY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2. NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT WAY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD WAY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES (INCLUDING BRANDS’ EXTERNAL SITES), AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. WAY MAKES NO WARRANTY THAT THE GOODS AND SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WAY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS AND SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE PLATFORM.
11.3. NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM. YOU UNDERSTAND THAT WAY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM. WAY MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WAY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE PLATFORM.
11.4. THIRD-PARTY MATERIALS. AS A PART OF THE PLATFORM, YOU MAY HAVE ACCESS TO MATERIALS THAT ARE HOSTED BY ANOTHER PARTY. YOU AGREE THAT IT IS IMPOSSIBLE FOR WAY TO MONITOR SUCH MATERIALS AND THAT YOU ACCESS THESE MATERIALS AT YOUR OWN RISK.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights; however, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You hereby release the Way Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Platform. Way expressly disclaims any liability that may arise between Users of its Platform. Because Way is not a party to the actual contracts between Users, in the event that you have a dispute with one or more Users, you release the Way Parties from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. The foregoing releases does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Way Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform provided hereunder.
If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
13.1. DISCLAIMER OF CERTAIN DAMAGES. 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 PLATFORM, YOUR PUBLISHING OR BOOKING OF ANY EXPERIENCE VIA THE PLATFORM, OR ANY OTHER INTERACTION YOU HAVE WITH OTHER USERS WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE WAY PARTIES 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 (I) THIS AGREEMENT, (II) FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM, (III) FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE, INTERACT OR MEET WITH AS A RESULT OF YOUR USE OF THE PLATFORM, OR (IV) FROM YOUR PUBLISHING OR BOOKING OF AN EXPERIENCE, OR (V) FROM ANY OTHER MATTER RELATED TO THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WAY 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. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A WAY PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY WAY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A WAY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.2. CAP ON LIABILITY. TO THE FULLEST EXTENT PROVIDED BY LAW, WAY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO WAY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) $100; OR (C) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A WAY PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY A WAY PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A WAY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.3. USER CONTENT. WAY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
13.4. EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
13.5. BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WAY AND YOU.
To the maximum extent permitted by applicable law, you agree to defend (at Way’s option), indemnify, and hold the Way Parties, 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 (i) Your User Content, (ii) your breach of this Agreement or our policies or standards, (iii) your use of, or inability to use, the Platform, or (iv) your breach of any laws, regulations or third party rights. Way reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Way in asserting any available defenses. This provision does not require you to indemnify any of the Way Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or the Platform provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Platform.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.
15.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Way agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Platform, or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Way may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Way may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
15.2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Way. If that occurs, Way is committed to working with you to reach a reasonable resolution. You and Way agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Way therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Way that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to our offices located at 9450 SW Gemini Dr PMB 46393, Beaverton, Oregon 97008-7105. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
15.3. Waiver of Jury Trial. YOU AND WAY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Way are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the section titled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.4. Waiver of Class and Other Non-Individualized Relief. YOU AND WAY AGREE THAT, EXCEPT AS SPECIFIED IN THE SECTION ENTITLED “BATCH ARBITRATION,” EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMERS OR USERS. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Way agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the Commonwealth of Massachusetts. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Way from participating in a class-wide settlement of claims.
15.5. Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Way agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Way otherwise agree, or the Batch Arbitration process discussed in the Section entitled “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Way agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
15.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the Commonwealth of Massachusetts 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 thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under the Section entitled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch.
15.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the Section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the Section entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the Section entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
15.8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Way need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
15.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Way agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Way by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Way.
You and Way agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
15.10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to out to: 9450 SW Gemini Dr PMB 46393, Beaverton, Oregon 97008-7105, and via e-mail to: email@example.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.11. Invalidity, Expiration. Except as provided in the Section entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Way as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
15.12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Way makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Kouto, Inc., 9450 SW Gemini Dr PMB 46393, Beaverton, Oregon 97008-7105 or e-mailing firstname.lastname@example.org, your continued use of the Platform constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Platform or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Way will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
15.3. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws provisions thereof, and the United States of America, including the Federal Arbitration Act. You agree that, with the exception of claims subject to arbitration, any dispute between you and us arising from or relating to the subject matter of these Terms must be brought in the federal and state courts located in Suffolk County, Commonwealth of Massachusetts, and you and we submit to the personal jurisdiction of the foregoing federal and state courts.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Platform (“Feedback“). You may submit Feedback by emailing us at email@example.com. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
17.1. Electronic Communications. The communications between you and Way may take place via electronic means, whether you visit the Platform or send Way e-mails, or whether Way posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Way in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Way provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
17.2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Way’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3. Force Majeure. Way shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Platform, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.5. Notice. Where Way requires that you provide an e-mail address, you are responsible for providing Way with your most current e-mail address. In the event that the last e-mail address you provided to Way is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Way’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Way at the following e-mail address: email@example.com.
17.6. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.7. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.8. Export Control. You may not use, export, import, or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Platform, and any other applicable laws. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by Way are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer products, services or technology of Way, either directly or indirectly, to any country in violation of such laws and regulations.
17.9. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
17.10. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
17.11. International Users. The Platform can be accessed from countries around the world and may contain references to services and Content that are not available in your country. These references do not imply that Way intends to announce such services or Content in your country. The Platform is controlled and offered by Way from its facilities in the United States of America. Way makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other countries do so at their own volition and are responsible for compliance with local law.