Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the Platform, you agree to comply with and be bound by these Terms.
Last Updated: June 14, 2021
Welcome to Way! These Terms constitute a legally binding agreement ("Agreement") between you and Way (as defined below) governing your access to and use of the Way platform, including any subdomains thereof, and any other websites through which Way makes its services available (collectively, the “Platform"). When these Terms mention “Way, “Kouto” “we,” “us,” or “our,” it refers to Kouto Inc., doing business as Way, the company you are contracting with. Your contracting entity will generally be determined based on your country of residence or establishment.
Hosts and Brands are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their Experiences (as defined below). For example, some Federal Land has laws that restrict commercial activity without appropriate permitting. In many cities, Hosts may have to register, get a permit or obtain a license before providing certain services. Host and Brands are alone responsible for identifying and obtaining any required licenses, permits, or registrations for any Experiences they offer. Certain types of Experiences may be prohibited altogether. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your Experiences on the Platform, you should always seek legal guidance.
1.1 The Platform is an online software platform that enables certain third parties such as hotels, resorts, retail brands, and media companies (“Brands”) to create, manage, curate, and sell activities, services, excursions, adventures (“Experiences”) in the Platform hosted by individuals affiliated in some way with their Brand (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 As the provider of the Platform, Way does not directly create, sell, resell, provide, control, manage, offer, deliver, or supply any Experiences. Brands and Hosts alone are responsible for their Experiences. When Participants and Brands 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. 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 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.
1.5 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.
1.6 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.
1.7 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.
2.1 In order to access and use the Platform or register for a Way Account 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.
2.2 You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that (i) neither you nor your Experiences are located or take place 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.
2.3 Way may 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.
2.4 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any User’s identity. Notwithstanding the above, 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.
2.5 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.
2.6 Some areas of the Platform implement Stripe Payment Processing services, including Stripe Connect APIs. Your use of Stripe is subject to the Stripe Services agreement which can be found at https://stripe.com/legal
Way reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications upon your next login to the Platform. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Platform will constitute acceptance of the revised Terms.
4.1 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 these Terms.
4.2 You can register a Way Account using an email address and creating a password.
4.3 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.
4.4 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.
4.5 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, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
4.6 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.
5.1 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, "Collective Content").
5.2 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, Way Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 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 Collective Content, except to the extent you are the legal owner of certain User Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Way or its licensors, except for the licenses and rights expressly granted in these Terms.
5.4 Subject to your compliance with these Terms, 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 Collective Content made available on or through the Platform and accessible to you, solely for your personal and non-commercial use.
5.6 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 the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Way's use of the User Content (or any portion thereof) as contemplated under these Terms 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.
5.7 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, these Terms or otherwise may be harmful or objectionable to Way, its Users, third parties, or property.
6.1 Way and/or Brands may charge fees to Participants ("Participant Fees") in consideration for the use of the Platform.
6.2 Any applicable Participant Fees (including any applicable Taxes) 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.
6.3 Participants are responsible for paying any Service Fees that are owed to Way and/or Brands. The applicable Participant Fees (including any applicable Taxes) are collected by Way.. Way will deduct any necessary Participant Fees from the Experience Price before remitting the payout to the Host and Brand, or will include any necessary Participant Fees in any payouts to Brands, as contracted upon separately between Brands and Way prior to use of the Platform.
7.1 You and your Hosts are solely responsible for setting a price for your Experience (“Experience Price”).
7.2 Any terms and conditions included in your Experience must not conflict with these Terms.
7.3 When you accept a booking by a Participant, you are entering into a legally binding agreement with the Participant and are required to provide the Experience to the Guest as described.
7.4 Way recommends that Brands obtain appropriate insurance for their Experiences and Hosts.
7.5 You are responsible for the Experiences that Hosts submit, list and provide. Way merely provides the Platform and is not itself an operator or provider of tours, activities, travel services, Experiences, events or other services. Way does not own, sell, resell, furnish, provide, manage and/or control any such Experiences, events or other services. Way’s responsibilities are limited to making the Experiences available through the Platform.
7.6 You are 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.
7.7 As a Brand, you are solely responsible for determining your obligations to report, collect, remit or include in your Listing Fees any applicable VAT or other indirect sales taxes, occupancy tax, tourist or other visitor taxes or income taxes ("Taxes").
8.1 Subject to meeting any requirements (such as completing any verification processes) set by Way and/or the Brand, you can book an Experience available on the Platform by following the respective booking process. All applicable fees, including the Experience Price and Participant Fee, (if applicable), (collectively, “Total Fees”) will be presented to you prior to booking an Experience. You agree to pay the Total Fees for any booking made in connection with your Account.
8.2 Upon receipt of a booking confirmation from Way, a legally binding agreement is formed between you and 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 will collect the Total Fees at the time of the booking.
8.3 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 these Terms 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.
8.4 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.
9.1 Brands, Hosts, and 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.
9.2 Any policies, rules, restrictions and considerations for modifications, cancellations and refunds will be governed by the Brand and/or Hosts. 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 on the platform.
10.1 Within a certain timeframe after completing a booking, Participants can leave a public review (“Review”) and submit a star rating (“Rating”) about the Host. 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.
10.2 Ratings and Reviews must be accurate and may not contain any offensive or defamatory language. Ratings and Reviews are subject to Section 5.
10.3 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.
10.4 Ratings and Reviews are part of a Host’s public profile and may also be surfaced elsewhere on the Platform.
11.1 You are solely responsible for compliance with any and all laws, rules, regulations, and obligations that may apply to your use of the Platform. In connection with your use of the Platform, you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms;
- 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 these Terms 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 Fees 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 Collective 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.
11.2 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 these Terms; (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 these Terms. 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.
12.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Way terminate the Agreement in accordance with this provision.
12.2 Hosts and Participants may terminate this Agreement at any time by sending us an email. 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.
12.3 Without limiting our rights specified below, Way may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
12.4 Way may immediately, without notice, terminate this Agreement and/or stop providing access to the Platform if (i) you have materially breached your obligations under these Terms (ii) you have violated applicable laws, regulations or third party rights, or (iii) Way believes in good faith that such action is reasonably necessary to protect the personal safety or property of Way, its Users, or third parties (for example in the case of fraudulent behavior of a User).
12.5 In addition, Way may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Way Account registration, or thereafter, or (iv) Way believes in good faith that such action is reasonably necessary to protect the personal safety or property of Way, its Users, or third parties, or to prevent fraud or other illegal activity:
- refuse to surface, delete or delay any User Content;
- cancel any pending or confirmed bookings; or
- temporarily or in case of severe or repeated offenses permanently suspend your Kouto Account and stop providing access to the Platform.
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Way and an opportunity to resolve the issue to Way's reasonable satisfaction.
12.6 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 through a Way Account of another User.
12.7 Sections 5 and 13 to 19 of these Terms shall survive any termination or expiration of this Agreement.
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.
You agree that you have had whatever opportunity you deem necessary to investigate the Way 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.
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 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. Neither Way nor any other party involved in creating, producing, or delivering the Platform will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the 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, 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.
To the maximum extent permitted by applicable law, you agree to release, defend (at Way’s option), indemnify, and hold Way and its affiliates and subsidiaries, including but not limited to, Way, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the Platform, (iii) your interaction with any User, participation in an Experience, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation or use, or (iv) your breach of any laws, regulations or third party rights.
16.1 This Dispute Resolution and Arbitration Agreement shall apply if your (i) country of residence or establishment is in the United States; or (ii) your country of residence or establishment is not in the United States, but bring any claim against Way in the United States (to the extent not in conflict with Section 21).
16.2 Overview of Dispute Resolution Process. Way is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 19.1 applies: (1) an informal negotiation directly with Way’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 19 and except as provided in Section 19.6). Specifically, the Consumer Arbitration Rules provide:
- Claims can be filed with AAA online (www.adr.org);
- Arbitrators must be neutral and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
16.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Way each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Way’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
16.4 Agreement to Arbitrate. You and Way mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the Platform will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our dispute, you and Way agree that the arbitrator will decide that issue.
16.5 Exceptions to Arbitration Agreement. You and Way each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
16.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
16.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Way agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and Way both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
16.8 Modification of AAA Rules - Attorney’s Fees and Costs. You and Way agree that Way will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, Way agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA Rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
16.9 Arbitrator’s Decision. 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 with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
16.10 Jury Trial Waiver. You and Way acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
16.11 No Class Actions or Representative Proceedings. You and Way acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and Way both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 19.11 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 19.11 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and Way agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.
16.12 Severability. Except as provided in Section 19.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
16.13 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if Way changes this Section 19 (“Dispute Resolution and Arbitration Agreement”) after the date you last 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) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Way’s email to you notifying you of such change. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Way (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Way.
16.14 Survival. Except as provided in Section 19.12 and subject to Section 15.8, this Section 19 will survive any termination of these Terms and will continue to apply even if you stop using the Platform or terminate your Way Account.
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 firstname.lastname@example.org. 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.
If your country of residence or establishment is the United States, these Terms will be interpreted in accordance with the laws of the Commonwealth of Massachusetts and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 16 must be brought in state or federal court in Suffolk County, Massachusetts, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Suffolk County, Massachusetts.
19.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Way and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Way and you in relation to the access to and use of the Platform.
19.2 No joint venture, partnership, employment, or agency relationship exists between you and Way as a result of this Agreement or your use of the Platform.
19.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
19.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
19.5 Way’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
19.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Way's prior written consent. Way may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
19.7 Unless specified otherwise, any notices or other communications to Users permitted or required under this Agreement, will be provided electronically and given by Way via email, Platform notification, or messaging service.
19.8 If you have any questions about these Terms please email us at email@example.com