Effective: June 1, 2020
You understand and agree that we may change the Terms from time to time, and that any such changes will be effective (except as otherwise described in Section 17.10 below) when we post the modified Terms on the Guidesly Service, unless otherwise required by applicable law. Your continued access and use of the Guidesly Service after we post the modified Terms will constitute your consent to be bound by the modified Terms.
2. Guidesly Service.
2.1 Nature of the Guidesly Service. The Guidesly Service consists of a desktop Web application, mobile applications, and other related tools, support and services that guests (“Guidesly Guests”) and providers of guide-related services (“Service Providers”) can use to find, communicate with and interact with each other. The Guidesly Service includes our emergency support services, educational materials for Service Providers, and other services. We charge fees for some aspects of the Guidesly Service, as described below in Section 9.
2.2 Guidesly does not provide Guide Services. Guidesly is a neutral venue for Service Providers and Guidesly Guests. Guidesly is not a Service Provider and, except for emergency phone support and other resources and support specifically described in the Guidesly Service, does not provide guide services. We make no representations or warranties about the quality of guide services provided by Service Providers (“Guide Services”), or about your interactions and dealings with users. Service Providers listed on Guidesly are not under the direction or control of Guidesly, and Service Providers determine in their own discretion how to provide Guide Services. Though we provide general guidance on our Site to Service Providers about trip safety and to Guidesly Guests about selecting and engaging Service Providers, Guidesly does not employ, recommend or endorse Service Providers or Guidesly Guests, and, to the maximum extent permitted by applicable law, we will not be responsible or liable for the performance or conduct of Service Providers or Guidesly Guests, whether online or offline. We conduct an initial review of Service Provider profiles and we facilitate Background Checks or Identification Verifications (each as described in Section 10, below) on Service Providers conducted by a third party, but, except where explicitly specified in the Guidesly Service (and then only to the extent specified), do not otherwise screen Service Providers or Guidesly Guests. You should exercise caution and use your independent judgment before engaging a Service Provider, providing Guide Services, or otherwise interacting with users via the Guidesly Service. Guidesly Guests and Service Providers are solely responsible for making decisions that are in the best interests of themselves and their equipment and services.
2.3 Release. Subject to Section 16 below, our liability for any claims, injuries, loss, harm and/or damages arising from and/or in any way related to your interactions or dealings with other users and the acts and/or omissions of Service Providers and Guidesly Guests, whether online or offline, is limited to the amounts and obligations set forth in the Guidesly Guarantee. You acknowledge and agree that, except to the extent we have liability under the Guidesly Guarantee, and to the maximum extent permitted by the applicable law, YOUR USE AND/OR PROVISION OF GUIDE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK.
2.4 Transactions are between Guidesly Guests and Service Providers. The Guidesly Service may be used to find and offer Guide Services and to facilitate payment, but all transactions conducted via the Guidesly Service are between Guidesly Guests and Service Providers. Except for the limited refunds and “Reservation Protection” specified in Section 9.6 and the Guidesly Guarantee, you agree that Guidesly has no liability for damages associated with Guide Services (which may include bodily injury to, or death) or resulting from any other transactions between users of the Guidesly Service.
2.5 Bookings. Guidesly Guests and Service Providers transact with each other on the Guidesly Service when they both agree to a “booking” that specifies the fees, time period, cancellation policy, and other terms for provision of Guide Services via the booking mechanism provided on the Guidesly Service (a “Booking”). A Booking may be initiated by either a Service Provider or a Guidesly Guest by selecting the type(s) of Guide Services to be provided and then following the prompts that appear on-screen. If you are a Guidesly Guest and you initiate a Booking, you agree to pay for the Guide Services described in the Booking when you click “Request & Pay.” If you are a Guidesly Guest and a Service Provider initiates a Booking, you agree to pay for the Guide Services described in the Booking when you click “Pay Now.” All requests are subject to acceptance by the receiving party. The receiving party is not obligated to accept your (or any) request and may, at their discretion, decline for any reason. You acknowledge that, once you complete a Booking, you agree to honor the price and other terms of that Booking, as acknowledged in the Booking confirmation.
2.6 Guidesly Guests are Solely Responsible for Evaluating Service Providers. Guidesly Guests are solely responsible for evaluating the suitability of Service Providers for the services they offer to provide. Please visit the Help Center for guidance about making informed decisions about engaging Service Providers. Though Guidesly performs a limited review of Service Provider profiles and facilitates Service Provider Background Checks or Identity Verifications conducted by a third party, any such screening is limited, and Guidesly does not warrant that any such screen is accurate, complete, conclusive or up-to-date. Similarly, Guidesly does not endorse reviews of Service Providers by other Guidesly Guests that may be available via the Guidesly Service, and Guidesly makes no commitments that such reviews are accurate or legitimate.
3. Compliance with Applicable Law. By accessing and using the Guidesly Service, you certify that you: (1) are at least 18 years of age or the age of majority in your jurisdiction, whichever is higher, and (2) will comply with all laws and regulations applicable to your activities conducted through, or related to, the Guidesly Service.
You acknowledge that Guidesly is entitled to rely on these commitments from you, is not responsible to ensure that all users have complied with applicable laws and regulations, and will not be liable for a user’s failure to do so.
4. Use of the Guidesly Service; Suspension.
4.1 Your Conduct on the Guidesly Service. When you use the Guidesly Service, you agree:
4.2 Suspension and Termination. You understand and agree that we have no obligation to provide the Guidesly Service in any specific location or territory, nor to continue providing it once we have begun. We reserve the right to suspend or terminate your access to the Guidesly Service: (1) if in our discretion your conduct on the Site or Guidesly Service is inappropriate, unsafe, dishonest, or in breach of these terms; or (2) if necessary in our discretion to protect Guidesly, its users, guests, or the public. You may suspend or terminate your use of the Guidesly Service at any time and for any reason. If you wish to deactivate your account, please contact Guidesly. Note that if you have any outstanding payment obligations, those will survive suspension or termination of your account.
5. Registration; Account Security. In order to use some aspects of the Guidesly Service, you will be required to create a username, password, and user profile. If you elect to use the Guidesly Service, you agree to provide accurate information about yourself and keep this information up-to-date. You agree not to impersonate anyone else and not to maintain more than one account (or, if Guidesly suspends or terminates your account, not to create additional accounts). You are responsible for maintaining the confidentiality of your username and password for the Guidesly Service and are responsible for all activity under your account. You agree to notify us promptly of any unauthorized use of your account.
6. Privacy. Our collection and use of your personal information on the Guidesly Service is described in our Privacy Statement. By accessing or using the Guidesly Service, you acknowledge that you have read and understand the Privacy Statement.
7. Your Content.
7.1 Your Content. We may require or allow you (or someone else on your behalf) to submit or upload text, photographs, images, videos, reviews, information and materials to your profile on the Guidesly Service or otherwise in connection with using the Guidesly Service and/or participating in promotional campaigns we conduct on the Site (collectively, “Your Content”). For example, Service Providers are invited to create a profile page with a photograph and other information and to transmit photos of the guests and trips under their care to Guidesly Guests, while Guidesly Guests may submit reviews of Service Providers.
7.2 License. Except for the limitations on our use and disclosure of personal information described in our Privacy Statement, to the maximum extent and duration permitted under any applicable law, you grant Guidesly an irrevocable, perpetual, non-exclusive, fully paid worldwide license to use, copy, perform, publicly display, reproduce, adapt, modify, transmit, broadcast, prepare derivative works of, and/or distribute Your Content in connection with providing and/or promoting the Guidesly Service, and to sublicense these rights to third parties.
7.3 Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release Guidesly and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with the license in Section 7.2 and the other provisions of these Terms.
7.4 Your Representations and Warranties about Your Content. You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents and permissions necessary to grant the license in Section 7.2 and make the release in Section 7.3 with respect to Your Content, (2) that you have any necessary consents and releases from individuals who appear in Your Content; and (3) Your Content does not violate the law or these Terms.
7.5 Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the Guidesly Service. Our enforcement of these Terms with respect to Your Content is at our discretion, and failure to enforce the Terms in one instance does not create a waiver of our right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.
7.6 Reviews. The Guidesly Service may provide the ability to leave public and/or private reviews of users. You acknowledge that even private reviews may be shared with third parties in accordance with applicable law and our Privacy Statement and that Guidesly has no obligation to preserve or indefinitely store any reviews. If you are a Service Provider, we have no obligation to provide you with the content of any reviews about you submitted by other users of the Guidesly Service, whether before or after termination of your account for the Guidesly Service. We will have no liability to you for any deletion, disclosure, loss or modification of these reviews. We reserve the right to screen, edit or remove these reviews from the Guidesly Service at any time.
8. Phone, Text and Mobile Communications.
8.1 Consent to Autodialed Text Messages. This section 8.1 applies only to users in the United States. You consent to Guidesly communicating with you about the Guidesly Service by SMS, text message, email and other electronic means, including autodialed text messages containing service information and/or marketing messages, even if your phone number is on the do-not-call list. Your carrier's normal messaging, data and other rates and fees will apply to these communications. You are not required to provide this consent to receive marketing messages as a condition of purchasing anything or using the Guidesly Service, and you may opt-out of receiving these messages at any time as described in our Privacy Statement (though you may continue to receive messages while Guidesly processes your request).
8.2 Phone Number Changes. In the event you deactivate a mobile phone number provided to us, you agree to update your Guidesly account information promptly to ensure that messages are not sent to the person who acquires your old number.
9. Fees & Payment.
9.1 Currency. All fees, deductible amounts and other payments referenced on, or charged through, the Guidesly Service are listed and payable in local currency.
9.2 Fees for Guidesly Guests. Guidesly Guests may purchase Guide Services from a Service Provider by completing a Booking as described in Section 2.5. If you are a Guidesly Guests, you enter into a transaction with the Service Provider when you accept a Booking, and you agree to pay the total fees indicated in the Booking. As described in Sections 9.3 and 9.4, the total amount Guidesly Guests are charged for a Booking may also include a service fee payable to Guidesly. Where required by law, the amount charged will also be inclusive of applicable taxes. The Service Provider, not Guidesly, is responsible for performing the Guide Services.
9.3 Fees for Service Providers. Service Providers may agree to provide Guide Services to a Guidesly Guests by agreeing to a Booking as described in Section 2.5. If you are a Service Provider, you must confirm the Booking before it expires or the Guidesly Guests will have no obligation to complete the transaction. Once the Booking is completed by both parties, you agree to honor the price set forth in your Booking. The purchase of Guide Services is a transaction between the Guidesly Guests and the Service Provider. Guidesly’s role is to facilitate the transaction. We will (either directly or indirectly through an authorized third party) collect payment from the Guidesly Guests at the time of Booking and (except to the extent of any payment hold pursuant to Section 9.7) initiate payment to the Service Provider’s account 48 hours after completion of the service period indicated in the Booking. Service Providers are charged a service fee as described in Section 9.4. Where required by law, the amount charged will also be inclusive of applicable taxes.
9.4 Service Fees. We charge service fees for some aspects of the Guidesly Service. If you are a Service Provider, except where otherwise specified via the Guidesly Service, our service fee is calculated as a percentage of the fees a Guidesly Guests agrees to pay to you in a Booking and is collected from each Booking.
9.5 Late Fees and Additional Charges. If you are a Guidesly Guests, you acknowledge and agree that, if you fail to arrive for your trip or extend the service period agreed in a Booking, you will be charged for additional service time (pro rata for each partial late day) at the daily rate established in the Booking. In addition, you agree to indemnify Guidesly from, and agree that we may charge your credit card or other payment method for, any additional costs and expenses we or the Service Provider incur as a result of your failure to fulfill the terms documented and agreed in your Booking.
9.6 Cancellations & Refunds.
9.7 Payment Holds. If you are a Service Provider, Guidesly reserves the right to issue a hold on amounts otherwise payable to you pursuant to Section 9.3 if there is a reasonable suspicion of fraudulent activity involving your account(s) or for other similarly compelling reason involving protection of Guidesly, the Guidesly community or third party rights. We may also recommend that third party payment service providers restrict your access to funds in your account under the same circumstances.
9.8 Authorization to Charge. When you pay for Guide Services or for other services on the Guidesly Service, you will be required to provide us with valid, up-to-date credit card or other payment information and to maintain that payment information (or an acceptable alternative payment method) on file with your account so long as you have any outstanding, confirmed Bookings. Guidesly’s role is to facilitate payments from Guidesly Guests to Service Providers as limited payment agent for the Service Provider. You authorize us to charge your credit card or other payment method for fees you incur on the Guidesly Service as they become due and payable, and to charge any alternative payment method Guidesly has on record for you in the event your primary payment method is expired, invalid, or otherwise not able to be charged. You are responsible for maintaining up-to-date payment information. If we cannot charge you for fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that neither Guidesly nor the Service Provider will be responsible for any failure to provide services associated with those fees. Except as expressly provided in these Terms, all fees paid via the Guidesly Service are non-refundable once paid.
9.9 Taxes. Except for taxes on Guidesly’s income and gross receipts or where Guidesly is otherwise required to collect taxes, you acknowledge that you are solely responsible to pay any applicable taxes that arise as a result of your purchase, provision, or use of Guide Services via the Guidesly Service. This includes, without limitation, any form of sales tax, VAT, or income tax on fees paid or received by you through the Guidesly Service.
10. Background Checks and Identity Verifications.
Guidesly may provide Service Providers with access to third party consumer reporting agencies that perform, among other things, personal identification verification services (“Identity Verification”) or criminal records checks, sex offender registry checks, motor vehicle records checks and/or identification verifications (collectively, “Background Checks”). Outside of the US and Canada, these services are limited to Identity Verification. We do not provide, and are not responsible or liable in any manner for, the Background Checks or Identity Verifications, and we do not endorse or make any representations or warranties regarding the reliability of such Background Checks or Identity Verifications or the accuracy, timeliness or completeness of any information in the Background Checks or Identity Verifications. We do not independently verify information in the Background Checks or Identity Verifications.
If you undergo a Background Check or Identity Verification via the Guidesly Service, you hereby consent to the collection, use and disclosure of the information in the Background Check or Identity Verification, and you agree to provide complete and accurate information for your Background Check or Identity Verification. You understand and agree that Guidesly may, in its sole discretion, review and rely on the information in the Background Check or Identity Verification in deciding whether to suspend or terminate or investigate a complaint about a Service Provider, but also that we are not obligated to do so, and are not responsible or liable in any way in the event that any information in any Background Check or Identity Verification is not accurate, timely or complete. If you are the subject of a Background Check or Identity Verification, you may contact the applicable third-party consumer reporting agency to dispute the accuracy, timeliness or completeness of such information. You agree that Guidesly’s rights and obligations under the Arbitration Agreement inure to the benefit of the consumer reporting agency used for Background Checks or Identity Verification in respect of any claim that would be subject to the Arbitration Agreement if brought against us. Guidesly reserves the right to suspend or terminate your access to the Guidesly Service based on information in the Background Check or Identity Verification or for any other reason, or no reason, in our sole discretion.
Guidesly Guests remain fully responsible to evaluate and investigate their Service Providers. Be aware of the following limitations in Background Checks: Except as otherwise expressly provided in these Terms or through the Service, Guidesly does not automatically run Background Checks on any Users. Background Checks may vary by type, breadth and depth. Records not available to third-party Background Check agencies will not be included in the results. Not all arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are available in all jurisdictions. In many jurisdictions there is a delay before arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are included in Background Checks. Juvenile records and offenses for minors may not appear in the public record and are therefore not included in the results. Dismissed cases, arrests not resulting in convictions, arrests or convictions in foreign countries and nolle prosequi (abandonment of prosecution) may not be reported. Traffic violations are not included unless a jurisdiction reports them as criminal offenses. In the jurisdictions where traffic violations are reported as criminal offenses, such traffic violations may be included in the results as misdemeanors or felonies.
11. Copyright Infringement.
If you believe in good faith that your copyrighted work has been infringed by content posted on the Guidesly Service, please provide our designated copyright agent with a written notice that includes all of the following information:
Our designated agent for notice of copyright infringement can be reached at: Guidesly, Inc. Attention: Copyright Notice 48 Coppermine Rd, Topsfield, MA 01983
12. Third Party Services, Links. The Guidesly Service may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement of such websites or resources, or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
13. Indemnity. TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD GUIDESLY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other users of the Guidesly Service; (2) breach of these Terms; (3) disputes with other users of the Guidesly Service; (4) your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties caused by you or your guests; (6) Your Content; or (7) your use of any Background Check or Identify Verification information in violation of any applicable law. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
14. Intellectual Property.
14.1 Guidesly Service. Guidesly and its licensors retain all right, title and interest in and to the Guidesly Service, the technology and software used to provide it, all electronic documentation and content available through the Guidesly Service (other than Your Content), and all intellectual property and proprietary rights in the Guidesly Service and such technology, software, documentation and content. Except for your rights to access and use the Guidesly Service set forth in these Terms, nothing in these Terms licenses or conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate into the Guidesly Service any feedback or suggestions for improvement that you provide to us concerning the Guidesly Service, without any obligation of compensation.
14.2 Guidesly Trademarks. Guidesly owns all rights in and to its trademarks, service marks, brand names and logos (the “Guidesly Marks”). If you are a Service Provider, Guidesly grants you, for so long as you are in good standing on the Guidesly Service, a limited, revocable, non-exclusive, non-transferable license to use the Guidesly Marks solely: (1) in the form incorporated into goods, including customizable marketing collateral (promo cards, signage etc.), made available for purchase via the Guidesly Store and/or (2) in any other manner specifically authorized in writing via the Guidesly Service. As a condition of exercising such license, you agree that (1) all goodwill associated with your use of the Guidesly Marks inures solely to the benefit of Guidesly, and (2) such license immediately terminates upon your ceasing to be a Service Provider in good standing, whether at your own option or because Guidesly suspends or terminates your rights to use the Guidesly Service.
15. Warranty Disclaimer for the Guidesly Service. The information and materials found on the Guidesly Service, including text, graphics, information, links or other items, are provided "as is" and "as available." Reviews, profiles, advice, opinions, statements, offers, or other information or content made available through the Guidesly Service, but not directly by Guidesly, are those of their respective authors, who are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUIDESLY DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF INFORMATION AND MATERIALS ON THE GUIDESLY SERVICE; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN GUIDESLY; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE GUIDESLY SERVICE WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GUIDESLY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE GUIDESLY SERVICE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY SERVICE PROVIDER THAT OFFERS GUIDE SERVICES VIA THE GUIDESLY SERVICE.
16. Limitation of Liability.
16.1 Exclusion of Certain Types of Damages. To the maximum extent permitted under applicable law, in no event will Guidesly be liable to you for any indirect, special, incidental, or consequential damages, or for any business losses, or loss of profit, revenue, contracts, data, goodwill or other similar losses or expenses that arise out of or relate to the use of or inability to use the Guidesly Service, including without limitation damages related to any information received from the Guidesly Service, removal of your profile information or review (or other content) from the Guidesly Service, any suspension or termination of your access to the Guidesly Service, or any failure, error, omission, interruption, defect, delay in operation or transmission of the Guidesly Service, even if we are aware of the possibility of any such damages, losses or expenses. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
16.2 Limit on Our Liability to You. EXCEPT FOR THE LIMITED REIMBURSEMENTS APPROVED BY GUIDESLY UNDER THE GUIDESLY GUARANTEE AND THE REFUND AMOUNTS PAYABLE BY GUIDESLY THAT ARE SET FORTH IN SECTION 9, AND EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL GUIDESLY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO THE GUIDESLY SERVICE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU TO GUIDESLY (SPECIFICALLY EXCLUDING AMOUNTS PAID TO SERVICE PROVIDERS) DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABLITY OR, IF YOU HAVE NOT PAID GUIDESLY FOR THE USE OF ANY SERVICES, THE AMOUNT OF $100.00 USD (OR EQUIVALENT IN LOCAL CURRENCY).
16.3 No Liability for non-Guidesly Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GUIDESLY BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE GUIDESLY SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH THE GUIDESLY SERVICE, OR FOR ANY INTERACTIONS WITH OTHER USERS OF THE GUIDESLY SERVICE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.
IF YOU HAVE A DISPUTE WITH A SERVICE PROVIDER OR GUIDESLY GUEST, YOU AGREE TO RELEASE GUIDESLY FROM ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES, EXCEPT TO THE EXTENT STATED IN THE GUIDESLY GUARANTEE. IN NO EVENT WILL GUIDESLY BE LIABLE FOR DIRECT OR INDIRECT CONSEQUENCES OF A GUIDESLY GUEST OR SERVICE PROVIDER FAILING TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
17. Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH GUIDESLY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. IF YOU RESIDE WITHIN THE EUROPEAN ECONOMIC AREA, THIS SECTION APPLIES ONLY TO BUSINESS CUSTOMERS (NOT “CONSUMERS”). IF YOU ARE A CONSUMER RESIDING WITHIN THE EUROPEAN ECONOMIC AREA, PLEASE SEE SECTION 18.
17.1 Arbitration Agreement; Claims. This Section 17 is referred to as the "Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 17.9 below, you and Guidesly (together, the “Parties”) agree that any and all disputes or claims that arise between you and Guidesly relating to the Guidesly Service, interactions with others on the Guidesly Service, and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims arising out of or related to a violation of Section 4.1, above, (3) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (4) claims that, as a matter of applicable law, cannot be made subject to arbitration.
17.2 Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 17.9 below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties' dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
17.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND GUIDESLY AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION 17.9 BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND GUIDESLY AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER GUIDESLY SERVICE USERS.
17.4 Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at legal@Guidesly.com or by Guidesly, Inc., Attn: Legal, 48 Coppermine Rd, Topsfield, MA 01983. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
17.5 Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted in English by a neutral arbitrator in accordance with your choice of the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) or the Rules of the International Center for Dispute Resolution (the “ICDR Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. The JAMS Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration, and the ICDR Rules are available at https://www.icdr.org/rulesformsfees, and both Rules are incorporated in these Terms by reference. You either acknowledge and agree that you have read and understand the Rules or waive your opportunity to read the Rules and any claim that the Rules are unfair or should not apply for any reason. If there is any inconsistency between the Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 16. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are binding and enforceable in court and may be overturned by a court only for very limited reasons.
The arbitration will be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 USD (or equivalent in local currency) or less, you or Guidesly may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Guidesly subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Guidesly, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Massachusetts (or of England and Wales if you are located outside of the United States or Canada), including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Guidesly users, but is bound by rulings in prior arbitrations involving the same Guidesly user to the extent required by applicable law. As limited by applicable law, these Terms and the applicable JAMS Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
17.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be shared equally by you and Guidesly, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Guidesly will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Guidesly will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Guidesly for all fees associated with the arbitration paid by Guidesly on your behalf that you otherwise would be obligated to pay under the JAMS or ICDR Rules.
17.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
17.8 Severability. If any term, clause or provision of this Section 17 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17 will remain valid and enforceable.
17.9 Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section 17.9. The Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must mail the Opt-Out Notice to Guidesly, Inc., Attn: Legal, 48 Coppermine Rd, Topsfield, MA 01983. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the Guidesly Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 18.
17.10 Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Guidesly prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Guidesly prior to the effective date of removal.
18. Governing Law and Jurisdiction.
18.1 For users in the United States and Canada, these Terms, and any dispute between you and Guidesly, will be governed by the laws of the State of Massachusetts, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 17 (the Arbitration Agreement). Unless you and we agree otherwise, or except where prohibited by applicable law, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and Guidesly must be resolved exclusively by a state or federal court located in the State of Massachusetts. You and Guidesly agree to submit to the personal jurisdiction of the courts located within Boston, Massachusetts for the purpose of litigating all such claims or disputes.
18.2 For users in the EEA (and the United Kingdom should it no longer be part of the EEA), the laws of England shall govern these terms, except that if you live in a country outside of England but within the EEA, certain mandatory applicable laws of your country will apply for your benefit and protection in addition to or instead of certain provisions of English law. Any dispute that arises between you and Guidesly must be resolved by the English courts or the courts in your country if you live in the EEA outside of England.
18.3 If you are a consumer in the European Economic Area, the European Online Dispute Resolution platform http://ec.europa.eu/consumers/odr provides information about alternative dispute resolution, which you may use if there is a dispute that cannot be resolved between you and the relevant party.
19. Miscellaneous. Nothing in these Terms will be construed as making either party the partner, joint venturer, agent, legal representative, employer, worker, or employee of the other. Neither party will have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound. These Terms are non-exclusive and do not prohibit Service Providers from offering guide services via other means or third parties. The invalidity, illegality or unenforceability of any term or provision of these Terms will in no way effect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified. To the maximum extent possible under applicable local law, this Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.
For questions or concerns about the Guidesly Service or these Terms, please refer to the Guidesly Help Center, or contact your local office:
Location- United States Telephone- 888-453-7889 Email / Online Assistance Please contact us through our Help Center