SGA - Software Terms of Service
Table of Contents
Last Updated: March 18, 2021
Welcome to the Special Guest, Inc. (“Special Guest,” “us,” and “we”) website, application, and talent booking and representation services. Special Guest provides a talent representation and booking service between talent (LIVE entertainers) and LIVE entertainment venue owners (Hosts).
PLEASE READ THIS SOFTWARE TERMS OF SERVICE AND TALENT BOOKING REPRESENTATIVE AGREEMENT (“AGREEMENTS”) CAREFULLY. THIS AGREEMENT FORMS A BINDING AGREEMENT BETWEEN SPECIAL GUEST AND YOU. BY ACCESSING OR USING THE WEBSITE LOCATED AT [SPECIALGUESTAPP.COM] (THE “WEBSITE”) OR ANY OF THE MOBILE OR OTHER APPLICATIONS (EACH, AN “APPLICATION”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR APPLICATIONS (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), WORKING DIRECTLY WITH SPECIAL GUEST TALENT REPRESENTATIVES WHETHER IN PERSON OR VIRTUALLY, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, DOWNLOADING ANY APPLICATION(S) AND/OR MERELY BROWSING THE WEBSITE OR APPLICATION(S), 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 SPECIAL GUEST, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY. THE TERM “YOU” REFERS TO THE INDIVIDUAL WHO IS ACCESSING OR USING THE SERVICES AND IS BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE AGREEMENTS, YOU MAY NOT ACCESS OR USE THE WEBSITE, THE APPLICATION(S) OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 18 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE, APPLICATION(S) AND/OR ANY SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE NOTE THAT The Terms are subject to change by SPECIAL GUEST in its sole discretion at any time. When changes are made, Special Guest will make a new copy of the Agreement available at the Website and within the Application. We will also update the “Last Updated” date at the top of the Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below) to use the Services, we will also send an email to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Terms will be effective immediately for new users of the Website, the Application and/or Services and will be effective thirty (30) days after posting of notice of such changes for existing users, provided that any material changes will be effective for users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 3.1 below). Special Guest may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE AND/OR APPLICATION TO VIEW THE THEN-CURRENT TERMS.
Use of the Services and Special Guest Properties.
The Application, the Website, the Services, and the information, software and content available on the Website and in the Application, and the Services (collectively, the “Special Guest Properties”) are protected by intellectual property laws throughout the world. Subject to this Agreement, Special Guest grants you a limited license to reproduce portions of Special Guest Properties for the sole purpose of using the Services for your personal purposes. Unless otherwise specified by Special Guest in a separate license, your right to use any of Special Guest Properties is subject to the Terms.
- How the Services Work. The Services make available a discovery, marketing, scheduling and booking platform that connects musicians, comedians, magicians, impersonators and similar LIVE entertainers / talent (“each, an “Entertainer”) with live entertainment venues, festivals, and event coordinators who would like to book live entertainment (each, a “Host”). Entertainers can create online profiles via mobile and web apps and / or work directly with Special Guest talent representatives to promote services and to find paid gigs, accept paid offers, counter paid offers, engage with Special Guest staff, and connect directly with venues and Hosts for purposes of booking gigs. In the event a Host decides it wants to engage the services of the Entertainer, the host can request a reservation for the event via the Special Guest website or directly through a Special Guest talent representative via an 800 number, email, or text. Upon acceptance of such reservation by the Entertainer (such reserved Event, a “Booked Event”), the Host will make available to the Entertainer the necessary information for the Event, and the Venue will be charged in accordance with Section 3 below. Special Guest acts as the talent representative and booking Talent Representative for all transactions and accordingly takes a fee for such services.
- Application License. Subject to your compliance with the Terms, Special Guest grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the Application on mobile devices that you own or control and to run such copy of the Application solely for your own personal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store, Android Play Store, or other application source (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS and (ii) as permitted by the “Usage Rules” set forth in each approved App Store Terms of Service.
- Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by this Agreement. Subject to your compliance with this Agreement, Special Guest grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by this Agreement.
- Open Source Software. Some of the software in our Application(s) or Software may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 1.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
- Updates. Special Guest may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and related Services (“Updates”). These Updates may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account (defined below). If you do not terminate your Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Special Guest Properties and you agree to promptly install any Updates Special Guest provides. Your continued use of the Special Guest Properties is your agreement to this Agreement with respect to the Special Guest Properties.
- Support or Maintenance. Special Guest will represent Entertainers in the interest of remediating, negotiating, or resolving any conflict between Hosts and Entertainers. Special Guest will be the primary liaison between Entertain and Host in every aspect of the transaction from sharing specific requirements of the Entertainer with the Host (rider or otherwise), negotiating payment, confirming load-in details, and any and all other necessary functions to successfully complete each transaction.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Special Guest Properties or any portion of Special Guest Properties; (b) you will not frame or utilize framing techniques to enclose any trademark, logo, or other Special Guest Properties (including images, text, page layout or form); (c) you will not use any metatags or other “hidden text” using Special Guest’s name or trademarks; (d) you will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Special Guest Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you will not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you will not access Special Guest Properties in order to build a similar or competitive website, application, product or service; (g) except as expressly stated herein, no part of Special Guest Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you will not remove or destroy any copyright notices or other proprietary markings contained on or in Special Guest Properties. Any future release, update or other addition to Special Guest Properties will be subject to the Terms. Special Guest, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Special Guest Properties terminates the licenses granted by Special Guest pursuant to the Terms. You acknowledge that the Services contains valuable trade secrets and proprietary information of Special Guest, that any actual or threatened breach of this Section 1.6 with respect to the Services will constitute immediate, irreparable harm to Special Guest for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
- Third-Party Materials. As a part of Special Guest Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Special Guest to monitor such materials and that you access these materials at your own risk.
- Registering your Account. In order to access certain features of Special Guest Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website or Application(s) (“Account”). You may register for the Account as an Entertainer or as a Venue. Depending on what type of Account you have, you may be entitled to different permissions under the Services.
- Entertainer Accounts. Entertainer accounts are free. Please contact [email protected] for questions regarding your account.
- Registration Data. In registering for the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Special Guest Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you will monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Special Guest Properties by minors. You may not share your Account or password with anyone, and you agree to (A) notify Special Guest immediately of any unauthorized use of your password or any other breach of security; and (B) exit from your Account at the end of each session. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you will not have more than one Account per platform at any given time. Special Guest reserves the right to remove or reclaim any usernames at any time and for any reason. You agree not to create an Account or use the Special Guest Properties if you have been previously removed by Special Guest, or if you have been previously banned from any of Special Guest Properties.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Special Guest Properties, including but not limited to, a mobile device that is suitable to connect with and use Special Guest Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Special Guest Properties.
Event Fees and Refunds
- Host Payment. Each Host will pay the fees for each Event in advance in accordance with the pricing as determined by the Entertainer (“Entertainer Fee”), plus a twenty percent (20%) booking fee for Special Guest (“Booking Fee”, and together with the Entertainer Fee, the “Fees”. Venue acknowledges that the Fees may change from time to time, in the sole discretion of the Entertainer (with respect to the Entertainer Fee) or Special Guest (with respect to the Booking Fee). By reserving an Entertainer for an Event, you agree that your payment provider as identified upon registration may be charged for the full amount of the Fees prior to the Event. Venues shall be solely responsible for the costs required by any venue for an Event, and shall be solely responsible for obtaining all necessary permissions and consents required to host the Event at any such venue.
- Entertainer Compensation. If you are an Entertainer, following the Event, Special Guest will remit the Entertainer Fee it has collected from such Host for that Event.
- Payment Information. All information that you provide to us or our third party payment processor must be accurate, current and complete. By organizing any Event, you authorize Special Guest to charge your payment card in accordance with this Section 3. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED TO PAY ANY CONTRIBUTION. You agree to pay all charges incurred by you or any users of your Member Account and payment card (or other applicable payment mechanism). Verification of information applicable to payments made by Guests may be required prior to your attendance of any Event.All payments by Venue are made via our third party payment processor, who will remit a Booking Fee to Special Guest, and the Entertainer Fee to the Entertainer. You will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless Special Guest from any and all taxes, including sales tax, based on any payments made by you via the Services. Special Guest does not make any representation or render any advice as to the potential tax implications of any payments made via the Services, or Event, and you should consult your tax professional with regards to the same.
- Cancellation Fees.If you, as a Venue / Host, cancel your Booked Event (a) prior to the cancellation window as specified at the time of booking, you will receive a full refund of all Fees paid; or (b) after the cancellation window as specified at the time of booking, you will not receive any refund of Fees paid.
- Refunds and Credits.Special Guest’s third party payment processor will hold all pre-paid amounts in escrow up until twenty four hours after the scheduled end-time for such Event, at which time the prepaid amount will be paid out to the Entertainer in accordance with this Section 3. In the event you, as a Host / Venue, are dissatisfied with any Event due to Entertainer’s services, you may submit a complaint within 24 hours of the scheduled end-time of the applicable Event to Special Guest’s customer service department by emailing Special Guest at [email protected] or calling 877-81-TALENT. Please include in your email: your name, contact information, the date and time of the Event you attended, and a description of your complaint. Special Guest reserves the right, in its sole discretion, but is not obligated, to issue refunds or credits. Notwithstanding the foregoing, in the event any Booked Event is cancelled by the Entertainer prior to the scheduled date and time, you will be refunded all amounts prepaid by you in connection with such Event.
YOU ACKNOWLEDGE AND AGREE DISSATISFACTION WITH THE ENTERTAINER’S SERVICES PROVIDED DURING, OR OVERALL ENJOYMENT OF, ANY EVENT IS NOT, BY ITSELF, SUFFICIENT GROUNDS TO RECEIVE A REFUND.
Responsibility for Content
- No Obligation to Pre-Screen Content. You acknowledge that Special Guest has no obligation to pre-screen Content (including, but not limited to, User Content), although Special Guest reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text or voice communications. In the event that Special Guest pre-screens, refuses or removes any Content, you acknowledge that Special Guest will do so for Special Guest’s benefit, not yours. Without limiting the foregoing, Special Guest shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by Special Guest in writing elsewhere, Special Guest has no obligation to store any of Your Content that you Make Available on Special Guest Properties. Special Guest has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Special Guest Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Special Guest retains the right to create reasonable limits on Special Guest’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Special Guest.
- Special Guest Properties. Except with respect to Your Content and User Content, you agree that Special Guest and its suppliers own all rights, title and interest in Special Guest Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Special Guest Properties.
- Trademarks. “Special Guest”, and other related graphics, logos, trademarks, service marks and trade names used on or in connection with Special Guest Properties are the trademarks of Special Guest and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Special Guest Properties are the property of their respective owners.
- Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content or other data that appears on or in Special Guest Properties.
- Your Content. Special Guest does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Special Guest Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display such Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in such Content. Subject to any applicable account settings that you select, you grant Special Guest a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Special Guest Properties to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Special Guest Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Special Guest, are responsible for all of Your Content that you Make Available on or in Special Guest Properties.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you will have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Special Guest.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Special Guest through email or its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Special Guest has no obligations (including, without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Special Guest a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Special Guest Properties.
- Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):
- Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Special Guest Properties (including your Account), or access to or use of Special Guest Properties;
- Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or
- Use Special Guest Properties or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation.
- Unauthorized Use or Access. You agree that you will not, under any circumstances:
- Interfere or attempt to interfere with the proper functioning of Special Guest Properties or connect to or use Special Guest Properties in any way not expressly permitted by the Terms;
- Disrupt or interfere with the security of, or otherwise cause harm to, Special Guest Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through Special Guest Properties or any affiliated or linked sites;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Special Guest or any of Special Guest’s providers or any other third party (including another user) to protect Special Guest Properties;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide Special Guest Properties, or to obtain any information from Special Guest Properties;
- Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Solicit or attempt to solicit personal information from other users of Special Guest Properties; or
- Use Special Guest Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers.
- General. In connection with your use of Special Guest Properties, you shall not:
- Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (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 (v) promotes illegal or harmful activities;
- Harm minors in any way;
- Impersonate any person or entity, including, but not limited to, Special Guest personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
- Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
- Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
- Register for more than one Account or register for an Account on behalf of an individual other than yourself;
- Stalk or otherwise harass any other user of the Special Guest Properties; or
- Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
- Ratings and reviews. The Services allow users to post reviews, ratings and comments about Events, Venues, and Entertainers (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advice contained therein. Reviews posted on our Services are User Content that is not endorsed by Special Guest and does not represent the views of Special Guest. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. Special Guest shall have the right, but not the obligation to monitor or review any Reviews at any time. Special Guest reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that Special Guest is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. Special Guest does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Entertainer; (ii) you will not provide a rating or review for any Entertainer with respect to which you have an employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If Special Guest determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
Special Guest may, but is not obligated to, monitor or review Special Guest Properties at any time. Although Special Guest does not generally monitor user activity occurring in connection with Special Guest Properties, if Special Guest becomes aware of any possible violations by you of any provision of the Terms, Special Guest reserves the right to investigate such violations, and Special Guest may, at its sole discretion, immediately terminate your license to use Special Guest Properties, without prior notice to you.
Interactions with Other Users
You are solely responsible for your interactions with other users of the Services, including Entertainers or Venues, and any other parties with whom you interact through the Services; provided, however, that Special Guest reserves the right, but has no obligation, to intercede in such disputes. You agree that Special Guest will not be responsible for any liabilities incurred as the result of such interaction. Special Guest Properties may contain User Content provided by other users. Special Guest is not responsible for and does not control User Content. Special Guest has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
- Third-Party Websites, Applications & Ads. Special Guest Properties may contain links to third-party websites and applications and advertisements for third parties (collectively, “Third-Party Websites, Applications & Ads”). When you click on a link to a third-party website, application or ad, we will not warn you that you have left Special Guest Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Applications & Ads are not under the control of Special Guest and Special Guest is not responsible for any Third-Party Websites, Applications & Ads. Special Guest provides these Third-Party Websites, Applications & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Applications & Ads, or their products or services. You use all links in Third-Party Websites, Applications & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites & Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
- App Stores. You acknowledge and agree that the availability of the Application(s) and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You and Special Guest acknowledge that this Agreement is between you and Special Guest and not with the App Store and that Special Guest, and not the App Store, is responsible for the Application(s) and the content thereof. Special Guest is responsible for providing any maintenance and support services with respect to the Application(s) and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Application(s). Special Guest is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application(s) to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price for the Application(s) to you; and to the maximum extent permitted by applicable law, the App Stores will not have any other warranty obligation whatsoever with respect to the Application(s), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Special Guest’s sole responsibility. You and Special Guest acknowledge that Special Guest, and not the App Store, is responsible for addressing any claims relating to the Application(s) or your possession and/or use of the Application(s), including, but not limited to: (1) product liability claims; (2) any claim that the Application(s) fail to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. You and Special Guest acknowledge that, in the event of any third party claim that the Application(s) infringe or your possession and use of the Application(s) infringe that third party’s intellectual property rights, Special Guest, and not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. 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 agree to comply with, and your license to use the Application(s) is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies and the Usage Rules) when using the Application(s). Special Guest and you acknowledge and agree that the App Stores and their subsidiaries, are third party Special Guest of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, the App Stores will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
You agree to indemnify and hold Special Guest, its parents, subsidiaries, affiliates, officers, employees, Talent Representatives, partners and licensors (collectively the “Special Guest Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, Special Guest Properties; (b) your violation of the Terms; (c) your violation of any rights of another party, including any user; (d) your violation of any applicable laws, rules or regulations; (e) as a Venue, your failure to secure any permissions and consents necessary to hold the Event at a given location; and (f) as a Venue, the acts or omissions of your guests at any Event. Special Guest 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 Special Guest in asserting any available defenses. This provision does not require you to indemnify any of the Special Guest Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this Section 10 will survive any termination of your Account, the Terms, or your use of or access to Special Guest Properties.
- As-Is. UNLESS EXPRESSLY AGREED TO BY SPECIAL GUEST ELSEWHERE IN WRITING AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPECIAL GUEST PROVIDES SPECIAL GUEST PROPERTIES “AS-IS” AND “AS-AVAILABLE” BASIS, WITH ALL FAULTS, AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SPECIAL GUEST DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF SPECIAL GUEST PROPERTIES OR THAT ANY RESULTS WILL BE ACCURATE OR RELIABLE. SPECIAL GUEST MAKES NO WARRANTY THAT SPECIAL GUEST PROPERTIES WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED.
- YOU USE OF THE SPECIAL GUEST PROPERTIES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND SPECIAL GUEST DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HOME, MOBILE DEVICE, AND ALL OTHER ITEMS IN YOUR HOME, RESULTING FROM YOUR USE OF SPECIAL GUEST PROPERTIES.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SPECIAL GUEST PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SPECIAL GUEST PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF SPECIAL GUEST PROPERTIES. YOU UNDERSTAND THAT SPECIAL GUEST DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SPECIAL GUEST PROPERTIES.
Limitations of the Services
Third Party Sites; Release
- Third Party Sites. The Special Guest Properties may contain links to other web sites operated by third parties (“Third Party Sites”). Such Third Party Sites are not under our control. Special Guest provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites. Your use of these Third Party Sites is at your own risk.
- Release. You hereby release the Special Guest 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 this Agreement or your use of the Special Guest Properties or your interactions with third parties and their products or services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
Limitation of Liability
- Disclaimer of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE SPECIAL GUEST PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH SPECIAL GUEST PROPERTIES, WHETHER OR NOT SPECIAL GUEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, RESULTING FROM: (1) THE USE OR INABILITY TO USE SPECIAL GUEST PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SPECIAL GUEST PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON SPECIAL GUEST PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO SPECIAL GUEST PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL SPECIAL GUEST PARTIES BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO Special Guest by you during the one-month period prior to the act, omission or occurrence giving rise to such liability. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN SPECIAL GUEST PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN SPECIAL GUEST PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN SPECIAL GUEST PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- User Content. SPECIAL GUEST ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPECIAL GUEST AND YOU. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
- Termination. This Agreement will remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time, for any reason by emailing [email protected]. Special Guest may terminate your Account if (a) you are in breach of the Agreement; (b) if Special Guest decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Special Guest will not have any liability whatsoever to you for any termination of your Account or related deletion of you information.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your Account information (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. All provisions of the Terms which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
This Website can be accessed from countries around the world and may contain references to Special Guest Properties that are not available in your country. These references do not imply that Special Guest intends to announce Special Guest Properties in your country. Special Guest Properties are controlled and offered by Special Guest from its facilities in the United States of America. Special Guest makes no representations that Special Guest Properties are appropriate or available for use in other locations. Those who access or use Special Guest Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Special Guest and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with Special Guest, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Special Guest 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
- IF YOU AGREE TO ARBITRATION WITH SPECIAL GUEST, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST SPECIAL GUEST ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE SPECIAL GUEST IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered Talent Representative: The Corporation Trust Company, Corporation Trust Center, 1209 Orange St, Wilmington, DE 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Special Guest will pay them for you. In addition, Special Guest will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Special Guest will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
- You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Special Guest. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND SPECIAL GUEST 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 Special Guest are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 19.6.
- 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 opt out to the following address: 14 East Northampton Street, Unit 210, Wilkes Barre, PA 18701, or to the following email address: [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Special Guest username (if any), the email address you used to set up your Special Guest 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.
- Severability. 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.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Special Guest.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Special Guest makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Special Guest.
- Electronic Communications. The communications between you and Special Guest use electronic means, whether you visit Special Guest Properties or send Special Guest e-mails, or whether Special Guest posts notices on Special Guest Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Special Guest in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Special Guest 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.
- Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Special Guest’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Special Guest 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, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Special Guest Properties, please contact us at: [email protected]. 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.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Special Guest agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
- Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws oF the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to THIS AGREEMENT.
- Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
- Notice. Where Special Guest requires that you provide an e-mail address, you are responsible for providing Special Guest with your most current e-mail address. In the event that the last e-mail address you provided to Special Guest is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Special Guest’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Special Guest at the following address: 14 East Northampton Street, Unit 210, Wilkes Barre, PA 18701. Such notice shall be deemed given when received by Special Guest by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this 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.
- Export Control. You may not use, export, import, or transfer Special Guest Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Special Guest Properties, and any other applicable laws. In particular, but without limitation, Special Guest Properties 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 Special Guest Properties, 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 also will not use Special Guest Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Special Guest 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 Special Guest products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Accessing and Download the Application(s) from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms are concluded between you and Special Guest only, and not Apple, and (ii) Special Guest, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Special Guest and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Special Guest.
- You and Special Guest acknowledge that, as between Special Guest and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Special Guest acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Special Guest and Apple, Special Guest, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and Special Guest acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Agreement. The Terms are 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.