Music Traveler User Terms and Conditions
Last updated: June 7, 2018
Welcome to Music Traveler!
We, Music Traveler GmbH, and our subsidiaries and affiliates worldwide (collectively, "Music Traveler" or "we" or "us" or "our", as applicable) provide an online Platform (as defined below) that connects hosts ("Hosts") who have premises, rooms or space (collectively, "Music Space") and/or musical instruments and equipment ("Music Instruments" or "Music Equipment," as applicable), with users ("Users") seeking to book such Music Space and/or Music Instruments and/or Music Equipment to use for music practice, music performance, music concerts or music events (collectively, the "Services"), which Services are accessible through our website(s) and/or webpage(s) and/or mobile application(s) and/or other social network platform(s) (collectively, the "Platform"). In these Terms and Conditions (the "Terms"), Music Traveler and the Host are, where applicable, collectively referred to as, the "Parties" and each, as a "Party".
These Terms constitute a binding contractual agreement between you and us, and govern your access to and use of the Platform, its contents (the "Contents") and the Services.
By using the Platform, you agree to comply with and be legally bound by the Terms, whether or not you become a registered User or Host of the Services under the Platform.
Please note that we may, at our sole discretion, modify or revise our Terms at any time by updating the text of this page, including in relation to applicable fees, without notice to you, and you are bound by any such modification or revision. You should therefore visit this page periodically to review our Terms. Your continued access, use and/or browsing on this Platform following the posting of changes to the Terms means you accept those modifications or revisions.
THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS.
IN PARTICULAR, HOSTS SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE REGION OR TERRITORY. IN MANY REGIONS OR TERRITORIES, HOSTS MUST REGISTER, GET A PERMIT, OR OBTAIN A LICENSE BEFORE LISTING A MUSIC SPACE AND/OR MUSIC INSTRUMENT AND/OR MUSIC EQUIPMENT, OR ACCEPTING USERS. HOSTS SHOULD REVIEW THEIR LOCAL LAWS BEFORE LISTING A SPACE ON MUSIC TRAVELER.
USERS MUST BE HOLDERS OF A PROPER INSURANCE WHICH COVERS POTENTIAL DAMAGES IN MUSIC SPACES AND, WHERE APPLICABLE, MUSIC INSTRUMENTS AND/OR MUSIC EQUIPMENT.
If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the Platform, its Contents and the Services, and must exit immediately. Failure to use the Platform in accordance with these Terms may subject you to civil and criminal penalties.
Certain areas of the Platform (and your access to or use of certain aspects of the Services) may have different terms and conditions, standards, guidelines, or policies posted or may require you to agree with and accept additional terms and conditions. Unless otherwise stated under these Terms, in the event of a conflict between these Terms and terms and conditions posted for a specific area of the Platform, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Platform.
1. Host and User Relationship
The Platform comprises a medium through which Hosts may create listings for Music Spaces and/or Music Instruments and/or Music Equipment, and Users may Book these directly with the Hosts.
You understand and agree that Music Traveler is not a party to any agreements entered into between Hosts and Users, nor is Music Traveler a real estate broker, agent or insurer. Music Traveler has no control over the conduct of Hosts, you and other Users of the Platform or any Music Space and/or Music Instrument and/or Music Equipment, and disclaims all liability in this regard to the maximum extent permitted by law.
2. Independent Contractor Relationships
You understand and agree that your relationship with Music Traveler is limited to being a User or Host, as applicable, and an independent, third-party contractor, and not an employee, agent, or joint venturer. You act exclusively on your own behalf and for your own benefit, and not on behalf of or for the benefit of Music Traveler. Music Traveler does not control, and has no right to control, your listing, your offline activities associated with your listing, or any other matters related to any listing, that you provide.
As a User, you agree not to do anything to create a false impression that you are endorsed by, partnering with, or acting on behalf of or for the benefit of Music Traveler, including, without limitation, by inappropriately using any Music Traveler intellectual property.
You acknowledge and agree that, by accessing or using the Platform, you agree to be bound by these Terms, whether or not you have registered with the Platform. If you do not agree to these Terms, then you have no right to access or use the Platform.
If you accept or agree to these Terms on behalf of a company or other legal entity or person, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "User", "you" and "your" will refer and apply to that company or other legal entity or person.
The Platform, its Contents and the Services are intended solely for persons who are eighteen (18) years of age (the "Minimum Age") or older. Any access to or use of the Platform, its Contents and/or its Services by anyone under the Minimum Age is expressly prohibited. By accessing or using the Platform, its Contents and/or Services, you represent and warrant that you are the Minimum Age or older.
4. User Vetting
For User in the United States, Music Traveler may, in its sole discretion and to the extent permitted by applicable law, perform a background check and search and, where applicable, obtain reports from public records of any criminal convictions or sex offender registrations in relation to any Host. Further, the User hereby gives consent to Music Traveler to conduct background checks as often as required in compliance with federal and state laws and the Fair Credit Reporting Act. The User hereby agrees to provide any background or compliance document upon request by Music Traveler, including, without limitation, a Good Conduct Certificate.
For Users outside the United States, we may, in our sole discretion and to the extent permitted by applicable law, perform a background check and search, and where applicable, obtain the local version of background or registered sex offender records or reports in relation to any User. You hereby agree and authorize us to use your relevant personal information, such as your full name and date of birth, to obtain such reports from third parties, including, without limitation, from Music Traveler’s vendors. The User hereby agrees to provide any background or compliance document upon request by Music Traveler, including, without limitation, a Good Conduct Certificate.
5. How the Platform and Services Work
You agree to be bound by and comply with any additional terms, conditions and policies provided by the owner, tenant, and property manager of the Music Space (collectively, the "Music Space Owners") relating to the use of a specific Music Space and/or Music Instrument and/or Music Equipment, including, without limitations, compliance with building security procedures, IT access and use procedures provided by the Music Space Owners (the "Venue Policies"). The Venue Policies may be provided in electronic format or in hardcopy format, and some times may even be provided on the Platform.
You are responsible for all activity that occurs with respect to your Account, including, without limitation, use of the Platform, its Contents and Services, and the Music Space. Without limiting the foregoing, where other persons are brought into the Music Space following a reservation made through your Account, you do hereby agree to be fully responsible and to indemnify Music Traveler for any violation of these Terms or applicable law, by-laws or regulations, even if such violation was caused by such other persons.
6. Bookings and Financial Terms
Music Traveler reserves the right to determine the prevailing pricing or fees for Services provided on the Platform. Any fees which Music Traveler may charge you for the use of the Platform, its Contents and Services, and the Music Spaces, will be as set out in the Music Traveler Payment Policy. Such fees are inclusive of any taxes payable, are due immediately at Booking (as defined below), and are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, Music Traveler's decision to terminate your usage, disruption caused to our Platform, its Contents and Services, or the Music Space(s), whether planned, accidental or intentional, or any reason whatsoever.
Currently, Music Traveler charges Hosts a transaction fee equal to the greater of 1€ per hour for the duration of the applicable User's stay or ten percent (10%) of any fees that Users are charged in relation to the Booking and/or use of the applicable Host’s Music Space. Hosts shall be responsible for payment of all applicable value added tax and all other taxes associated with any transaction fees that is payable in relation to the Host’s Music Space.
You do hereby agree that you shall be charged fees based on the length of your intended Booking stay at the applicable Music Space (regardless of whether you, thereafter, make use of the Music Space for a shorter duration). If you exceed the amount of time for which you Booked (as defined below) a Music Space, then you shall be charged for such excess time, as well as an overage charge if such excess time conflicts with another User's Booked (as defined below) time. You do hereby consent to such excess time charges and to such overage charge.
Music Traveler, at its sole discretion, may make promotional offers with different features and different rates to any of our Hosts and Users. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. Music Traveler may change the fees for our Platform, its Contents and Services, or the Music Spaces or other applications, as we deem necessary. We encourage you to check back on our Platform or the Music Spaces or other applications, periodically, for such promotional offers that may be beneficial to you.
"Booking" means a limited license granted by the Host to the User to enter and use the listed Music Space and/or Music Instrument and/or Music Equipment for the limited duration of the confirmed booking, during which time the Host (only where and to the extent permitted by applicable law) retains the right to re-enter the Music Space and/or repossess the Music Instrument and/or the Music Equipment, in accordance with the User's agreement with the Host. Reference to "Book" or "Booked" has the same meaning as "Booking".
7. Complaints; Damage and Security Deposit
In the event the User has a complaint about Music Traveler, the Platform, its Contents and/or the Services, a Host or other Users, or any other issue in relation to the Terms, the User shall send a written complaint (email to suffice) to Music Traveler, after which Music Traveler shall try to reach out to the User within a reasonable period of time, to address the User's concerns and resolve the matter. Complaints, inquiries or questions can be sent to Music Traveler at email@example.com.
B. Damage to Music Spaces or Instruments or Equipment and Security Deposit [D1]
As a User, you are responsible for leaving the Music Space and/or Music Instruments and/or Music Equipment (including any personal or other property located at the Music Space) in the condition it was in when you arrived. You acknowledge and agree that, as a User, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Music Space. In the event that a Host claims otherwise and provides evidence of damage ("Damage Claim"), including, but not limited to, photographs, you agree to pay the cost of replacing the damaged items with equivalent items.
Hosts may choose to include security deposits in their listings ("Security Deposits"). Listings may describe whether a Security Deposit is required for the applicable Music Space. Music Traveler will try to address Hosts' requests and claims related to Security Deposits, but Music Traveler is not responsible for administering or accepting any Damage Claims by Hosts related to Security Deposits, and disclaims any and all liability in this regard.
If a Host has a Damage Claim for a confirmed Booking, the Host can seek payment from the User by referring the Damage Claim to Music Traveler. If a Host refers a Damage Claim to Music Traveler, you as a User will be notified of the Damage Claim and given an opportunity to respond. If you as a User agree to pay the Host in connection with a Damage Claim, or if Music Traveler determines, in its sole discretion, that you are responsible for damaging a Music Space and/or Music Instrument and/or Music Equipment, or any personal or other property located at a Music Space, Music Traveler will collect any such costs from you and/or against the Security Deposit.
Music Traveler also reserves the right to otherwise collect payment from you and pursue any avenues available to Music Traveler in situations in which you have been determined, in Music Traveler's sole discretion, to have damaged any Music Space and/or Music Instruments and/or Music Equipment, or any personal or other property located at a Music Space.
Both Users and Hosts agree to cooperate with and assist Music Traveler in good faith, and to provide Music Traveler with such information and take such actions as may be reasonably requested by Music Traveler, in connection with any Damage Claims or other complaints or claims made by Hosts or Users, as applicable, relating to Music Spaces and/or Music Instruments and/or Music Equipment, or any personal or other property located at a Music Space (including, without limitation, payment requests made under the Music Traveler Host Guarantee) or with respect to any investigation undertaken by Music Traveler or a representative of Music Traveler regarding use or abuse of the Platform and/or its Contents and/or the Services. If you are a User, upon Music Traveler's reasonable request, and to the extent you are reasonably able to do so, you agree to participate in mediation or similar resolution process with a Host, at no cost to you, which process will be conducted by Music Traveler or a third party selected by Music Traveler or its insurer, with respect to losses for which the Host is requesting payment from Music Traveler under the Music Traveler Host Guarantee.
If you are a User, you understand and agree that Music Traveler may make a claim under your homeowner's, renter's or other insurance policy related to any damage or loss that you may have caused or been responsible for with regards to a Music Space and/or Music Instrument and/or Music Equipment, or any personal or other property located at a Music Space (including, without limitation, amounts paid by Music Traveler under the Music Traveler Host Guarantee). You agree to cooperate with and assist Music Traveler in good faith, and to provide Music Traveler with such information as may be reasonably requested by Music Traveler, in order to make a claim under your homeowner's, renter's or other insurance policy, including, but not limited to, executing documents and taking such further acts as Music Traveler may reasonably request to assist Music Traveler in accomplishing the foregoing.
Security Deposits, if required by a Host, may also be applied to any fees due from a User overstaying at a listing without the Host's consent.
8. User Conduct
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Platform, its Contents and the Services. In connection with your use of the Platform, its Contents and the Services, you may not and you agree that you will not:
A. violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
B. use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the Platform;
C. use the Platform for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Music Traveler endorsement, partnership or otherwise misleads others as to your affiliation with Music Traveler;
D. dilute, tarnish or otherwise harm the Music Traveler brand in any way, including through unauthorized use of the Platform's Content, registering and/or using Music Traveler or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Music Traveler domains, trademarks, taglines, promotional campaigns or Platform Content;
E. copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by these Terms;
F. infringe the rights of Music Traveler or the rights of any other person or entity, including, without limitation, their intellectual property, privacy, publicity or contractual right;
G. interfere with or damage our Platform, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
H. use our Platform to 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;
I. use our Platform in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;
J. "stalk" or harass any other User or any Host of our Platform, or collect or store any personally identifiable information about any other User or any Host other than for purposes of transacting as a Music Traveler User or Host;
K. offer, as a Host, any Music Space and/or Music Instruments and/or Music Equipment that you do not yourself own or have permission to Book as a residential or other property;
L. offer, as a Host, any Music Space and/or Music Instruments and/or Music Equipment that may not be Booked pursuant to the terms and conditions of an agreement with a third party;
M. unless Music Traveler explicitly permits otherwise, request or Book a Music Space and/or Music Instruments and/or Music Equipment for someone else; and
N. contact another User or Host for any purpose other than asking a question related to a Booking, Music Space and/or Music Instruments and/or Music Equipment, or listing, or the User's or Host's use of the Platform, its Contents and Services.
O. contact another User or Host for any purpose other than asking a question related to a Booking, Music Space and/or Music Instruments and/or Music Equipment, or listing, or the User's or Host's use of the Platform, its Contents and Services.
9. Intellectual Property
Music Traveler owns all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other rights of any sort throughout the world) in the Platform, its Contents, the Services and the User information, and relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, in connection therewith (collectively, the "Music Traveler IP Rights"). In the event that any Music Traveler IP Rights do not qualify as such and are deemed to be the User's intellectual property rights, the User hereby makes all assignments necessary to accomplish the foregoing ownership by Music Traveler.The User shall assist Music Traveler, at Music Traveler's expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. The User hereby irrevocably grants Music Traveler a power oICCf attorney and designates and appoints Music Traveler and its agents as attorneys in fact to act for and in the User's behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Music Traveler.
B. Copyright Policy
Music Traveler respects copyright law and expects its Users to do the same. It is Music Traveler's policy to terminate in appropriate circumstances, the Accounts of Users or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
10. Representations and Warranties
The User represents and warrants that: (i) the User has the legal capacity to be Party to and be bound by these Terms, to make a Booking Request and the full right to accept the Services provided for herein; (ii) the User is at or over the Minimum Age requirement provided herein; (iii) the information provided and disclosed by the User to Music Traveler and the Host shall be accurate, complete and up-to-date, and the User hereby represents and warrants that the User has not and shall not falsify and/or misrepresent any of said User information; (iv) the User shall not infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Music Traveler); (v) the User shall comply with all applicable laws and Music Traveler rules surrounding the Booking process and use of the Music Space and/or Music Instruments and/or Music Equipment; and (vi) if the User's use of the Music Space and/or Music Instruments and/or Music Equipment requires a license, the User has obtained the requisite license and said license is in full force and effect.
Except as otherwise required by law, the User agrees that any information shared between the Parties ("Confidential Information") or provided by Hosts, in relation to the Platform, its Contents and the Services, shall be treated as strictly confidential and shall not be disclosed to any third party without the prior written consent of Music Traveler, except (a) to the User's counsel, tax advisors, auditors, employees, officers and directors, (b) to subsidiaries or affiliates of the User, (c) to potential assignees of the User, (d) to any investors or potential investors of the User, or (e) pursuant to an applicable requirement of law. The User is responsible for all of its recipients' conduct with respect to the Confidential Information.
IF YOU CHOOSE TO USE THE PLATFORM, ITS CONTENTS AND THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU HAVE TO BE AT LEAST OF MINIMUM AGE TO USE THIS SERVICE, OTHERWISE YOU NEED A GUARDIAN TO USE THEPLATFORM FOR YOU. YOU ACKNOWLEDGE AND AGREE THAT MUSIC TRAVELER DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND OR REGISTERED SEX OFFENDER CHECKS ON YOU OR ANY PERSON OR PARTY, INCLUDING, BUT NOT LIMITED TO, HOSTS AND OTHER USERS. IF WE CHOOSE TO CONDUCT SUCH CHECKS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT SUCH CHECKS WILL IDENTIFY PRIOR MISCONDUCT BY A USER OR HOST OR GUARANTEE THAT A USER OR HOST WILL NOT ENGAGE IN MISCONDUCT IN THE FUTURE.
THE PLATFORM IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, MUSIC TRAVELER EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MUSIC TRAVELER MAKES NO WARRANTY THAT THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ITS CONTENTS AND THE SERVICES, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MUSIC TRAVELER MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, MUSIC SPACE AND/OR MUSIC INSTRUMENTS AND/OR MUSIC EQUIPMENT, HOSTS, USERS, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE PLATFORM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MUSIC TRAVELER OR THROUGH THEPLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH USERS OF THEPLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY HOSTS OR OTHER USERS OR THIRD PARTIES. YOU UNDERSTAND THAT MUSIC TRAVELER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OFHOSTS ON, OR USERS OF THE PLATFORM, ITS CONTENTS AND/OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE HOSTS ON, OR USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, HOSTS AND OTHER USERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY MUSIC TRAVELER. MUSIC TRAVELER EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTY.
13. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM, ITS CONTENT AND SERVICES, YOUR LISTING OR BOOKING OF ANYMUSIC SPACE AND/OR MUSIC INSTRUMENT AND/OR MUSIC EQUIPMENT, VIA THE PLATFORM AND ANY CONTACT YOU HAVE WITH HOSTS ON, AND OTHER USERS OF THE PLATFORM, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER MUSIC TRAVELER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THEPLATFORM, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE PLATFORM, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM OR FROM YOUR LISTING OR BOOKING OF ANY MUSIC SPACE AND/OR MUSIC INSTRUMENT AND/OR MUSIC EQUIPMENT, VIA THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MUSIC TRAVELER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
The User agrees to indemnify and hold Music Traveler, its shareholders, directors, officers, employees, heirs, successors, assigns, agents and other representatives, harmless from any and all manner of Host and/or third party actions, suits, debts, sums of money, interest owed, accounts, controversies, agreements, guaranties, promises, undertakings, charges, damages, judgments, executions, obligations and reasonably incurred costs, expenses and fees (including reasonable attorneys' fees and court costs), counterclaims, claims, demands, causes of action, liabilities, losses, damages and amounts paid in settlement incurred, paid or sustained, including, without limitation, in relation to Music Spaces and/or Music Instruments and/or Music Equipment, as applicable (together, the "Claims") that they may suffer as a result of said Host and/or third party Claims against them arising out of a breach of the User's representations and warranties under enumerated Paragraph 10 hereof or an incident occasioned by the commission or omission of the User in relation to the Booking and/or use of Music Spaces and/or Music Instruments and/or Music Equipment.
Music Traveler may, in its sole discretion, terminate, change, suspend, disable, add to or discontinue any aspect of the Terms, the Platform, its Contents, the Services, User Accounts and Host Accounts, at any time, without recourse to the User or liability to Music Traveler. Music Traveler may restrict, suspend or terminate your use of or access to the Platform, its Contents or the Services, if we believe you are in breach of or are attempting to breach these Terms or applicable law, or for any other reason or no reason at all, without notice or liability (including, for example, if we learn that you have provided us with false or misleading information, or interfered with Hosts or other Users or the administration of the Platform, its Contents and/or the Services).
In the event of the termination of the Terms for any reason: (i) the license granted to you in the Terms, the Platform, its Contents, the Services, access to Hosts, other Users and your Account, will immediately terminate; and (ii) you must immediately cease all use of the Platform and destroy or erase all copies of the Platform in your possession or control. Any use of the Platform after termination is unlicensed and is in violation of the Music Traveler IP Rights.Music Traveler and its affiliates reserve the right to refuse service, terminate Accounts, remove or edit Content or cancel orders in their sole discretion.
If Music Traveler materially breaches a material provision of these Terms, the User may terminate this Agreement at any time by closing the User Account on the Platform.
16. Law and Jurisdiction
A. Governing Law and Arbitration
These Terms shall be governed by and construed in accordance with the laws of the Republic of Austria, without regard to the conflicts of laws provisions thereof. The Parties hereby waive (a) any right to sue in any court that would otherwise have jurisdiction, and (b) to have a jury trial. Any and all disputes or controversies arising under or relating to the interpretation or application of the provisions of the Terms or any extension or modification thereof, or the asserted breach thereof by any Party, shall be resolved through final and binding arbitration, as follows:
(i) if you are a resident of the United States of America, any arbitration between you and Music Traveler will be administered in New York City by the American Arbitration Association (the "AAA") under its then-current Commercial Arbitration Rules, as modified by these Terms, and as presided over by a single arbitrator chosen by the AAA; or
(ii) if you are a resident in any other territory, any arbitration between you and Music Traveler will be administered in Vienna, by the International Chamber of Commerce (the "ICC"), under its then-current Rules of Arbitration, as modified by these Terms, and as presided over by a single arbitrator to be chosen by the ICC.
In each situation, any arbitrator so appointed shall be empowered to (a) in addition to awarding actual money damages (but not punitive damages) against the Party found to have violated the Terms, grant in his award, injunctive or other types of equitable relief, (b) enforce specific performance of the Terms, and (c) prevent any continuing or further violation of its terms. Judgment upon the award rendered in such arbitration, shall be final, and may be entered in any court having jurisdiction there. The cost of such arbitration shall be borne equally by the Parties, except that each Party shall be responsible for its own attorneys' fees.
B. Class Action Waiver
You hereby agree to waive any class action proceeding or Claim or counterclaim against Music Traveler, its affiliates, successors or assigns, whether at law or equity, regardless of which Party or third party brings suit. This waiver shall apply to any matter whatsoever between the Parties hereto which arises out of or is related in any way to these Terms, the performance of either Party, and/or your (i) use of the Platform, its Content and/or the Services, (ii) use of your Account, (iii) Booking or use of Music Spaces and/or Music Instruments and/or Music Equipment, or (iv) interaction with Hosts or other Users.
From the foregoing, you and Music Traveler hereby agree that neither Party shall bring any action against the other Party as a plaintiff or class member in any purported class action or other representative proceeding. Further, unless you and Music Traveler otherwise agree, no judge or arbitrator may consolidate more than one person's Claims or otherwise preside over any form of representative or class proceeding.
C. Prior Negotiations and Mediation
The Parties agree to prior negotiate or to mediate any dispute arising under these Terms, before resorting to arbitration. In the event of any such dispute, the Parties, within thirty (30) days of a written request for negotiation and/or mediation, shall initiate negotiations and/or mediation, which shall be conducted in good faith. As part of good faith negotiation and/or mediation efforts, the Parties may appoint a mediator to guide the process. If the Parties are unable to resolve the matter or to agree to a mediator, the Parties shall submit the matter to arbitration.
These Terms and the Services contemplated hereunder are personal to the User and the User shall not have the right or ability to assign, transfer, or subcontract any obligations under the Terms without the written consent of Music Traveler. Any attempt to do so shall be void. Music Traveler shall have the right to assign, transfer, or subcontract any obligations under the Terms, at its absolute sole discretion, without the consent of the User.
All notices under the Terms shall be in writing, and shall be deemed given when (i) personally delivered, or (ii) sent by confirmed telecopy, facsimile or electronic mail (email) or other electronic means, or (iii) three (3) days after being sent by courier or prepaid certified or registered mail to the address of the Party to be given notice, as provided, or in the case of the User, the User address indicated in the User Account, or such other address as such Party last provided to the other by written notice.
The failure of Music Traveler to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Music Traveler. Except as expressly set forth in these Terms, the exercise by either Party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. In the event that any provision of the Terms shall be determined to be illegal, unenforceable or excessively broad as to duration, geographical scope or activity, then that provision shall be construed so that the remaining provisions of the Terms shall not be affected, but shall remain in full force and effect, and any such illegal or overly broad provision shall be deemed, without further action on the part of any Party, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable in the applicable jurisdiction. These Terms (along with the agreements ancillary hereto, and all of the exhibits and schedules attached hereto) contains and constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter hereof, except as specifically set forth herein and therein.
20. Territory-specific Information
This Platform, its Contents and Services, is for use by Users and Hosts in many territories and jurisdictions around the world. Certain specific laws or information may apply to you depending on the territory or jurisdiction in which you reside. Please read the following information in the event it applies to you and your territory or jurisdiction:
California Civil Code Section 1789.3, grants California residents the right to receive the following specific consumer rights notice:
The name, address of the provider of this service is Music Traveler GmbH, Annagasse 1/10, 1010 Vienna, Austria . Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address or to firstname.lastname@example.org
For further information on your consumer rights as a California resident, you can reach out to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, which may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.
21. Third Party Beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
22. Contacting Music Traveler
If you have any questions about these Terms please contact us at email@example.com