Last Updated / Effective Date: July 31, 2022
The Live Summer Portfolio Program membership program terms and benefits are offered by Live Summer, Inc., with an office at 325 Hudson Street, Floor 4, New York, NY 10013 or such other entity as may be designated from time to time by update to these Terms (defined below) from time to time (“Company”). Company will provide you (as defined below) with the Benefits (defined below) of membership in the Live Summer Portfolio membership program (the “Program”) as described in these Terms (defined below). These terms and conditions govern your membership in the Program (the “Terms”). Please carefully review these Terms which include an Arbitration Provision below.
Membership in the Program is available to individuals of majority age in their state of residence. Corporations, associations, entities, or groups are prohibited from enrolling in the Program, redeeming, or otherwise using any Benefits. This Program is intended for personal use and may not be used for investment or other commercial purposes. Application for membership, membership in the Program, and certain Benefits are void where prohibited by law. By enrolling in the Program, you certify that you meet the eligibility requirements set forth in these Terms.
Company reserves the right to suspend, discontinue, or terminate your membership if Company reasonably suspects you of ceasing to satisfy the eligibility requirements or of using the Program in a manner inconsistent with the Terms or intent of the Program. In addition to the above, Company reserves the right to take administrative and/or legal action, including, without limitation, criminal prosecution, as it deems necessary in its sole discretion.
Your membership term will commence upon the effective date of processing your membership application (“Activation Date”). The initial term will expire on the anniversary of the third calendar year after this Activation Date, unless terminated earlier or unless otherwise agreed by you and the Company (“Term”). Thereafter, if the Company elects to continue the Program, Members will be offered an opportunity to renew the membership for the then offered renewal term and at the then current membership fees as determined by Company in its sole discretion. During the Term, Membership fees may be waived, or postponed from time to time as determined by Company, in its sole discretion. If we do not mutually agree to renew prior to the expiration of the Term, your Membership will automatically expire. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. The Program has no predetermined termination date and may continue until such time as Company decides to terminate the Program, at any time, with or without cause. In the event the Company elects to terminate the entire Program without cause, the Company will refund a portion of the Membership fee to each Member, based on the remaining number of days in the unexpired Term, less any unpaid Nightly Rates, Taxes, and Folio Charges, within 45 days after the date of termination. Membership fees are consideration for membership and renewal of your membership and are not payment for any goods or services.
These Terms govern and control the Program and the relationship between Company and the persons whose names are provided below (collectively herein “you” and “your”, as applicable). Only the persons whose names appear on in the Membership Agreement initially and thereafter in the Registration Information may use the Program Benefits. A Member’s “Family” includes the Member’s companion and their unmarried children under the age of 23 living at home, attending school on a full-time basis, or serving in the U.S. Armed Forces or U.S. volunteer corps on a full-time basis. A Member living together with another individual in the same household as a family unit may designate the other individual to use the benefits as a “spouse” or “companion.” The Company may establish additional rules and procedures as it deems appropriate regarding designation of spouses, companions and Family members.
You are considered a Member in good standing for so long as you are in compliance with these Terms, including, but not limited to, being current on all payments, fees, expenses, and costs prescribed by these Terms.
At the time of your registration as a member, you agree to provide true, accurate, and complete information to Company (your “Registration Information”) and agree to maintain and promptly update your Registration Information as necessary in order to keep your Registration Information up to date. You may update your information by contacting Company at hey@gosummer.com. If Company reasonably suspects that any Registration Information or other information that you have provided to Company or another Provider is untrue, inaccurate, or incomplete at any time, Company may suspend or terminate your membership immediately and may suspend or terminate access to your account, the website, and related services and Benefits.
A Member in “Good Standing” is a Member: (a) who is current in the payment of all amounts due to the Company, (b) who is in compliance with all applicable Membership Documents, (c) whose Membership is not suspended or terminated, (d) whose Term has not expired without renewal, and (e) who has not asserted or overtly threatened any claim or action against Company or any Company Party (as defined in each Member’s Membership Application and Agreement).
Specific Program benefits and services have been established for the Program. Company, in its sole discretion, reserves the right to prepare, maintain, and offer differing Benefits, costs, fees, rules, procedures, and conditions to various members within the Program. Company reserves the right to add, modify, delete, or otherwise change the rules, procedures, conditions, or benefits, pertaining to the Program in its sole discretion, with notice, so long as the Vacation Home remains available for reservation during the initial Term as set forth in following reservation procedures. You acknowledge that these changes may affect your access to, and use of the Benefits. This means that Company may make changes that affect, but are not limited to, amenities within the Program, rules and procedures for the reservation or use of Benefits, continued availability of certain Benefits, Benefit types available under the Program, and any other feature or special offer, including, but not limited to, those benefits identified in these Terms and on www.gosummer.com (“Program Website”).
These Terms and a description of then current Benefits, as amended from time to time, including the LS Homes and the Home Rules are available at the Program Website. You are responsible for remaining knowledgeable as to the current Terms and Benefits. Company may attempt, but is not required, to send correspondence to advise you of matters of interest, including notification of Program changes. Company will not be liable for any failure to do so and will not be responsible for incorrect or inaccurate transcription of your contact information, for problems related to any of the equipment or programming associated with or utilized by you, for any human error, for any interruption, deletion, omission, defect, or line failure of any telephone network or electronic transmission, for problems relating to computer equipment, software, inability to access any website or on-line service, for any other technical or non-technical error or malfunction, for lost, late, stolen, illegible, incomplete, garbled, misdirected, mutilated or postage due mail or other mail or e-mail for whatever reason.
All Benefits available under the Program are subject to the conditions as provided in these Terms, as amended from time to time, and the terms, policies, and procedures of Company, and are only available to Members in Good Standing. Company’s interpretations of these Terms and the Benefits shall be dispositive in the event of a dispute regarding the meaning of these Terms or the then current Benefits.
Benefits (in general)
Members will be able to reserve use and occupancy of the Vacation Home (as defined in each Member’s Membership Application and Agreement) on dates reserved between 12-and-6 months in advance (during the Term), subject to the annual Membership Allowance credited to a Member each year. Subject to availability, Members may also reserve use and occupancy of the Vacation Home and the other resort properties managed by the Company (including the Vacation Home, the “LS Homes”) in the Program on dates reserved up to 6 months in advance (during the Term), subject to the Member’s annual Membership Allowance. Arrival dates for the LS Homes will be available starting 30 days after a Member’s Activation Date. The minimum length of each reserved stay is 2 nights. Subject to availability and a Member’s Membership Allowance, there is no maximum length of stay.
Pre-Arrival Services and Vacation Concierge
Members will have access to pre-arrival services, such as pre-arrival stocking, package deliveries, and delivery of stored owner property, along with concierge services to assist with advance reservations at local restaurants and other local venues during your vacation.
Other Benefits
Members will receive a periodic Members newsletter with additional Members-only special promotions.
Reservations of the Vacation Home and the other LS Homes will be made on the Program Website by selecting available dates and applying, at the time of booking, your Membership Allowance to the published “Nightly Rate” for each night of occupancy as well as the flat percentage charge for taxes and fees that Company imposes on each reservation (as further described below, “Taxes”). Availability and Nightly Rates for the Vacation Home and other LS Homes are searchable through your personalized Member webpage(s) on the Program Website or mobile application. Nightly Rates vary based on the property, home market, demand, seasonality and other factors as solely determined by Company. Nightly Rates may vary from night to night within a single reserved stay.
Each year, you will be issued a “Membership Allowance” in the amount of the annual Membership fees set forth in your Membership Application and Agreement to be used in reservations of the Vacation Home and other LS Homes during the 12-month period commencing on the Activation Date. The annual Membership Allowance expires on the each years’ anniversary of the Activation Date and a new Membership Allowance will be issued for each the next 12-month periods of the Term. Use of the Membership Allowance is based on dates of occupancy instead of dates of booking. You may book reserved stays in a subsequent year (e.g. up to 12 months in advance) but the Nightly Rates and Taxes will be applied to the Membership Allowance applicable to that year. The Membership Allowance cannot be saved or banked for use in subsequent years. Cancellation of a reserved stay may result in a credit back to your Membership Allocation but will not result in an extension of the 12-period in which to use the Membership Allowance.
Subject to availability, if your Membership Allowance has been fully applied in a year, you may also reserve additional nights at the Vacation Home and other LS Homes at your direct expense at the Nightly Rates and Taxes. Such reservations will be made in the same manner as booking stays using your Membership Allowance, provided the Nightly Rates and Taxes are due and payable in full at the time of booking. You agree that Company is authorized to charge the Nightly Rates and Taxes for these additional stays to your credit/debit card or other payment system on file with Company.
There is no penalty for cancelling reservations of more than 7 days on your arrival date and your Membership Allowance will be restored accordingly. For reservations cancelled inside of 7 day, Company will make reasonable attempts to rebook the LS Home and, if successful, your Membership Allowance will be restored. If Company is unsuccessful in rebooking the LS Home, or if you no-show without informing the Company of your cancellation, you will be responsible for the Nightly Rates and Taxes as a deduction to your Membership Allowance or direct payment, as applicable.
Company reserves the right, in its sole discretion, to cancel without refund or credit any reserved stay in the event that you cease to be in Good Standing or in the event of an early termination or expiration of the Term, whether caused by your breach of any obligation under the Membership Documents, or otherwise. Company also reserves the right to cancel any reservation up to 30 days prior to your arrival date in the event that a subject LS Home is deemed unavailable by Company in its sole discretion so long as, in such event (except in the case of a Force Majeure event as described below), the Company provides you with the opportunity to book a comparable LS Home at no additional Nightly Fee or Taxes; provided that in no event shall Company be responsible for any additional consequential costs (such as travel costs) related to such cancellation. Alternatively, in the event of such Company-cancellation (other than a Force Majeure event), Company may restore your Membership Allowance (or refund any direct payment) and issue you additional Membership Allowance credits to cover any difference in reserving a comparable LS Home. All rights and privileges of Members are subordinate to the claims or liens of any debt, deed of trust, deed to secure debts, mortgage, lease or similar instrument, or other encumbrances encumbering any Collection vacation option now or hereafter existing.
All Benefits related to accommodations are on a first-come, first-served basis and are subject to availability. Blackout dates may apply. Additional fees may apply and are FINAL and NONREFUNDABLE. You are not guaranteed fulfillment of a specific request or receipt of any specific Benefit. Benefits may be used only for personal and noncommercial purposes. Only the Member named on the confirmation form and Family members or accompanying guests may occupy accommodations. You are expressly prohibited from offering, marketing, selling, renting, or transferring any Benefits, including any reservation for an accommodation in association with the Program. You do not receive any real property interest, beneficial interest under any trust, or any right to occupy accommodations. Prices are in U.S. dollars. Company reserves the right to limit the number of confirmed reservations of LS Homes in its sole discretion. This Program is intended for the sole benefit of the individuals who enroll in the Program and their respective permitted successors and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable interest, right, benefit or remedy of any nature whatsoever, and is solely representative of the Benefits provided.
You are also solely responsible for payment of all transportation, food and beverage, including telephone, Program-specific charges, and any other items of a personal nature associated with any use of your Membership (collectively, “Folio Charges”). As a convenience to you, Company may occasionally offer you the opportunity to charge a variety of services to your Membership account. In such event, Company is hereby authorized to charge any and all such charges to your credit/debit card or other payment system on file with Company at the time of booking the service or upon your departure. In some instances, Company may otherwise permit you to “settle” such charges prior to departure. Only Members in Good Standing and who have a valid credit/debit card or other payment system on file with Company are entitled to any such charging privileges.
In connection with processing all reservations, a portion of the charge to your credit card or other payment method on file with Company may include a charge for Taxes. This charge includes an estimate of the amount we pay to any applicable taxing authority in connection with your reservation for taxes owed on your lodging and may include, without limitation, taxes for sales and use, transient and/or hotel occupancy, room, excise, value added and/or other similar taxes. The amount payable to the applicable taxing authority in connection with your reservation may vary based on the jurisdiction in which the LS Home where you will be staying is located, and may be less than the amount we estimate, the balance of which we retain as part of the compensation for our services and the administration of your reservation and booking process. You are solely responsible for payment of all Taxes, as well as any additional charges imposed by any municipality, state, federal or other government authority in connection with your Membership and receipt of reserved stays, including, for example, payment of all departure taxes, sales taxes or similar charges. Company is hereby authorized to charge any and all such Taxes to your credit/debit card or other payment system on file with Company in the event any applicable taxing authority demands additional payments greater than the amount we estimate.
Because many of the LS Homes have their own characteristics which may be distinguishable from other LS Homes, we reserve the right to enact separate rules for each LS Home (as to each, the “Home Rules”). Home Rules may change from time to time without advanced notice at Company’s sole discretion and may be based on contractual obligations, laws, and regulations governing each Benefit including, without limitation, any applicable laws, governmental regulations, licenses, permits and Company-imposed rules. We will provide you with a copy of applicable Home Rules at the time a reservation is made. By agreeing to be bound by these Terms and any other applicable Membership Documents, you agree to comply with, and acknowledge that the use and occupancy of the Home, or receipt of each Benefit, by each Member, Family member and permitted guest is subject to, all applicable Home Rules.
Occupancy of LS Homes shall not exceed the maximum number of persons, regardless of age, specified in the House Rules or otherwise provided in any federal, state, or local statute and/or ordinance (“Maximum Occupancy”). In the event that your party exceeds any applicable Maximum Occupancy, Company may, in addition to its other rights and remedies, refuse or terminate occupancy of the reservation and any nights remaining in such reserved stay shall be cancelled without refund and all travel fees shall be retained by Company as liquidated damages, and not as a penalty.
Unless otherwise specified, Member arrivals shall be no earlier than 3:00 p.m. local time (“Check-In Time”) and Member departures shall be no later than 11:00 a.m. local time (“Check-Out Time”). Early check-in and later-check out requests may be honored, if available, though a fee may apply for any such requests. Each Member agreeing to these Terms agrees to vacate the applicable LS Home at or prior to the applicable Check-Out Time or such later time as may be agreed to by Company. In the event any Member, Family member or permitted guest fails to vacate a LS Home at the expiration of his or her reserved stay, he or she shall be deemed a “Holdover.” Company reserves the right to take such steps as may be necessary to remove any such Holdover from a LS Home, and to assist any other Member who may be affected by the Holdover’s failure to vacate in finding comparable alternative accommodations (as determined at Company’s sole discretion) during any such holdover period. The Holdover shall be responsible for the following “Holdover Charges”: (a) the cost of any alternate accommodations secured for the Member, Family member or permitted guest affected by the Holdover’s failure to vacate or, if such alternate accommodations cannot be secured or are not desired by the affected Member, Family member or permitted guest, the amounts paid by the affected Member, Family member or permitted guest for such person’s entire reserved stay, if applicable; plus (b) any other costs incurred by Company or the affected Member(s), Family member(s), or guest(s) due to such Holdover’s failure to vacate, such as travel costs, if applicable; plus (c) the Nightly Rate (plus all applicable Taxes) for each night of holdover occupancy by the Holdover, together with an administrative fee of 50% of the Nightly Rate for each night of occupancy, such administrative fee to be charged by Company as liquidated damages for Company’s internal costs, and not a penalty. In the event it is necessary for Company to contract for a period greater than the actual period of holding over in order to secure alternate accommodations for another Member, Family member or permitted guest as set forth above, the entire period shall be the responsibility of the Holdover. By agreeing to the Terms, the Member agrees that Company is authorized to charge any and all Holdover Charges to such Member’s credit/debit card or other payment system on file with Company, which charges may be made daily for any night of holdover occupancy. Failure to pay is grounds for suspension or termination of your Membership, which termination shall not affect our right to receive full payment of Holdover Charges. We reserve all legal rights to collect any such Holdover Charges.
Smoking is absolutely prohibited inside any LS Home (including, without limitation, the Vacation Home). Smoking is also not permitted outside of a LS Home (for example, on a balcony); please see applicable House Rules for additional information. Members shall be solely responsible for all cleaning and related fees that Company may charge as a result of the violation of this policy, which includes a $250.00 fee.
Pets are likewise absolutely prohibited from being inside or staying at any LS Home (including, without limitation, the Vacation Home), unless otherwise stated by Company. In cases of a dog meeting the definition of a “service animal” under the Americans with Disabilities Act (ADA), and for which you have notified Company in advance, Company may permit the animal, subject to approval by the managing agent of the specific LS Home for which you are requesting the exception. Nothing in this Section may be construed to imply that Company is subject to the requirements of the ADA in all cases, or is otherwise required to permit any animals in LS Homes, even to the extent such animals meet the definition of a “service animal” under the ADA. Further, Members shall be solely responsible for all cleaning and related fees that Company may charge as a result of (i) the violation of this policy or (ii) a service animal’s presence in a LS Home as authorized and permitted by Company. You acknowledge and agree that the imposition of such fees is allowable and any amount charged is reasonable under the circumstances.
You are jointly, severally and fully responsible for your actions and the actions of your Family members and permitted guests during all use and enjoyment of an LS Home or otherwise in connection with your Membership. No person may remove or damage any property or furniture belonging to Company or within an LS Home. Members are responsible for the full replacement cost any damaged or missing property. By agreeing to these Terms and Conditions, each Member and their Family and guests, agree that Company is authorized to charge any and all loss and damages sustained to any property of Company or its third party services providers during your Benefits stay to your credit/debit card or other payment system on file with Company. In the alternative, Company has the right to invoice Members, their Family and/or guests for any such amounts, which invoice must be paid immediately, including any fees or costs of collection. Failure to pay is grounds for suspension or termination of your Membership, which termination shall not affect our right to receive the entire invoiced amount. In addition, in the event of any Member whose conduct, or whose Family’s or guest’s conduct, is deemed by Company to be likely to endanger the welfare, safety, harmony or good reputation of Company (“Bad Conduct”), Company may refuse or terminate occupancy of an LS Home (a “Bad Conduct Cancellation”) and further reserves the right to suspend or terminate your Membership as a result of Bad Conduct (a “Bad Conduct Termination”), in each case at Company’s sole discretion. In the event of a Bad Conduct Cancellation, any nights remaining in such Benefits reservation, shall be cancelled without refund and all travel fees shall be retained by Company as liquidated damages, and not as a penalty. Membership subject to a Bad Conduct Termination will not be permitted to create a new Membership account or otherwise receive Benefits.
Members and their Family members and guests, as a condition of enjoyment of any LS Home, assume sole responsibility for their personal property. Company is not responsible for any loss, damage, theft, or vandalism to any of your private property used or stored at any LS Home. You may not store or leave any property in the Property except items that may be securely and properly stored in the Property’s locked closet designated for your use, if one exists. If available at an SL Home, Company will provide you with a key to access a designated storage closet and you shall be prohibited from changing the lock to such closet. Company shall be entitled to access your closet (if any) in its sole discretion and without liability to you to remove and discard any contents that are considered by Company as a health or safety hazard or which interfere with the maintenance of the Home Rules. COMPANY IS NOT LIABLE FOR ANY THEFT, LOSS OR DAMAGE TO ANY OF YOUR BELONGINGS AND PROPERTY, INCLUDING BUT NOT LIMITED TO THE CONTENTS OF THE LS HOME’S LOCKED CLOSET DESIGNATED FOR YOUR USE, IF ANY.
Your Membership may be suspended or terminated by Company if you breach any provision of these Terms and Conditions or any other Membership Document, including breach of the Member conduct provisions of the Home Rules. Neither termination nor suspension, whether caused by breach, your election not to renew your Membership, or otherwise, relieves you of any outstanding obligations relating to your Membership. In the event your Membership is suspended or terminated, all existing reservations for Benefits will be cancelled and all monies you previously paid, including your Membership fees, and other amounts paid in furtherance of any cancelled reservation, will be retained by Company as liquidated damages for our administrative expenses, and not as a penalty. In addition, you will be responsible for paying monthly Membership fees for period of the lesser of: (i) 12 months from the term date, or (ii) the end of the initial 3-year Term. You agree that this is a reasonable estimate of our damages. All Program materials and your membership information are the property of Company, and, subject to applicable law, Company will retain ownership of these following termination of your membership or the Program.
Company will use commercially reasonable efforts to ensure the availability of LS Homes and other Benefits when reserved by Members. However, notwithstanding any other provision herein to the contrary, Company shall have no liability or responsibility for and will make no refund of any Nightly Rates, trip fees or other amounts paid by Members in connection with its inability to perform, or any delay in or cancellation (partial or full) of Benefits, due to forces beyond the control of Company, including but not limited to: acts of war, government instability, national economic instability, epidemics, quarantine regulations or other public health restrictions or advisories, terrorist attacks, strikes, acts of nature such as earthquakes, hurricanes, tornados and typhoons, or any other such event that renders a reserved LS Home unavailable, hindered, or delayed as determined by Company in its sole discretion (each event being a “Force Majeure”). Company recommends that Members purchase cancellation insurance for the value of all Nightly Rates, trip fees and any other related costs.
If married Members are legally separated or divorced (including companions with community property or similar legal rights are legally separated), the Membership will vest in the companion awarded the Membership by the court or, if the separation is pursuant to a separation agreement under the laws of a state where separation is so permitted, then the membership will vest in the companion awarded the Membership in the separation agreement. The Company reserves the right, in its sole discretion, not to transfer the Membership to either companion if the Company, in its sole discretion, is unable to determine the person who is lawfully entitled to receive the Membership, in which case the Membership will be deemed to have been terminated. Until acceptable written notice has been received by the Company, both companions will be jointly and severally responsible for the payment of all monetary obligations incurred in connection with the Membership, and both companions will be eligible to use and enjoy the Program Benefits.
Upon the death of either married Member (but not both persons), the Membership shall automatically continue in the surviving spouse or companion, who shall thereafter be permitted to add any new spouse or companion to such Membership. Upon death of the sole Member (in the event that there is no surviving spouse or companion) or the death of both married Members, the Membership may be transferred to a natural person (“Successor”) in accordance with the applicable laws of succession, provided that such Successor must agree, in writing, to accept the transfer of such Membership and agree to such documents as required by Company to evidence the Successor’s agreement to be bound by the Membership Documents. If a person to whom a deceased Member’s Membership is to be transferred in accordance with the applicable laws of succession does not desire such Membership within ninety (90) days of the transfer pursuant to the applicable laws of succession, such Membership will be terminated.
All Memberships transferred in accordance with this Section are and shall remain subject to the payment of all applicable Membership fees related thereto and other amounts payable in connection therewith.
These Terms and your membership will be governed by and construed under the laws of the State of New York, without giving effect to it choice of law or conflicts of law rules or provisions that would cause the application of any other state law. Claims will be resolved by arbitration, litigation and small claims as provided below.
General. You and the Company (each, a “Party” and collectively, the “Parties”) shall resolve all disputes (except as specifically excluded below) that may arise in connection with this Agreement through final and binding arbitration (without appeal or review), administered by a Qualified Person (as defined below) selected by Company (the “Arbitrator”). “Qualified Person” shall mean an independent, neutral and impartial individual having not less than ten (10) years’ industry experience in the area of expertise on which the dispute is based. All decisions of the Arbitrator, absent fraud, shall be final and binding on the Parties hereto (without appeal or review) and shall be enforceable in any court of competent jurisdiction. The arbitration proceeding and all related documents will be considered Confidential Information in accordance with these Terms.
Arbitration Process. To the extent not inconsistent with this Provision, the applicable rules and procedures of Judicial Arbitration and Mediation Service, Inc. (“JAMS”) for the dispute in question (the “JAMS Rules”) shall apply to any arbitration proceeding. The arbitration proceedings shall be conducted on an individual basis, and not on a multi-plaintiff, consolidated, collective or class-wide basis.
Decision of Arbitrator. The Arbitrator shall notify the Parties in writing of their decision within forty-five (45) days from the date on which the Arbitrator was selected, or such other period as both of the Parties and the Arbitrator may all collectively agree in writing.
WAIVER OF TRIAL BY JURY. YOU AND THE COMPANY, TO THE FULLEST EXTENT ALLOWABLE UNDER NEW YORK LAW, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, COUNTERCLAIM OR CROSSCLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER, WITH RESPECT TO, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT OR OTHER TRIER OF FACTS WITH COMPETENT JURISDICTION AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVE ITS OR THEIR RIGHT TO TRIAL BY JURY.
Authority, Location, Fees and Expenses. The authority of the Arbitrator shall be limited to deciding the matter submitted to it. The Arbitrator shall be bound by controlling law. All proceedings, awards and decisions under any dispute resolution proceeding described in this Provision shall be strictly private and confidential. The location of any arbitration proceedings shall be New York, New York, unless otherwise agreed by the Parties. The fees and expenses of the Arbitrator shall be paid by the Party against whom the Arbitrator rules. Each Party shall bear the costs and expenses of their own counsel, expert witnesses, research and case presentation in connection with any dispute resolution process described in this Provision.
Legal Proceedings. Notwithstanding anything in this Provision to the contrary, the Parties shall have the right to commence litigation or other legal proceedings with respect to any claims solely relating to: (i) preserving or protecting the Company’s proprietary information, (ii) emergency or injunctive relief, or (iii) enforcement of the dispute resolution provisions of this Provision, or (iv) enforcement of the decision and/or award by any Arbitrator hereunder.
NOTWITHSTANDING THE ARBITRATION PROVISION, BOTH PARTIES AGREE THAT ANY PARTY MAY SEEK REMEDIES IN SMALL CLAIMS COURT FOR DISPUTES OR CLAIMS WITHIN THE SCOPE OF SUCH COURT’S JURISDICTION, PROVIDED THE COURT’S REQUIREMENTS ARE SATISFIED.
ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER INDIVIDUALS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS.
