BY USING THE SITES, OR ANY OF THE CONTENT, FEATURES OR SERVICES MADE AVAILABLE THROUGH THE SITES, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND AND AGREED TO THESE TERMS AND EXPRESSLY AGREE THAT THEY FORM A BINDING CONTRACT BETWEEN YOU AND EQUINOX HOTELS.
These Terms do not amend any other agreement you may have with Equinox Hotels.
CHANGES TO THE TERMS
These Terms may change as we continue to evolve our business, as well as the Sites or any portion thereof. If we change these Terms, we will post the revised document here and such changes will be effective immediately upon that posting. Your continued use of the Sites constitutes your acceptance of such changes and agreement to be bound by the modified Terms, and so we recommend that you review these Terms periodically when accessing or using the Sites.
We recommend that you print or otherwise save a copy of these Terms, as updated from time to time, for your reference.
These terms were last updated: February 4, 2019
ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
Informal Dispute Resolution
Our goal is to do our best to ensure that every experience with Equinox Hotels will exceed your expectations. If that doesn’t happen, we hope you will give us the opportunity to try to address any problem or concern. To do so, please contact us at email@example.com. When contacting us, we ask that you include your name, address, phone number and email address, and a description of your problem or concern and any specific relief you seek.
By using the Sites, you and Equinox Hotels agree to submit any and all Disputes (as defined below) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). Arbitration shall be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), www.jamsadr.com; or (2) the American Arbitration Association (“AAA”), www.adr.org. If you initiate arbitration, you shall have the choice as between these two arbitration forums; if Equinox Hotels initiates arbitration, it shall have the choice as between these two arbitration forums.
WE EACH AGREE THAT, EXCEPT AS PROVIDED IN THE DEFINITION OF DISPUTES BELOW, ANY AND ALL DISPUTES WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, INCLUDING ALL ISSUES RELATING TO THE ENFORCEABILITY, INTERPRETATION, SCOPE, AND APPLICATION OF THIS ARBITRATION AGREEMENT (SUCH AS “GATEWAY” ISSUES OF ARBITRABILITY, WHETHER THE ARBITRATION AGREEMENT IS UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
Class Action Waiver
By using the Sites, you agree that the arbitration of any Dispute (as defined below) shall be conducted on an individual, not a class-wide basis, and that no such arbitration proceedings may be consolidated with any other arbitration or other legal proceedings involving Equinox Hotels or any other person. You further agree that you, and anyone asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against Equinox Hotels. We and you agree that the arbitrator of any Dispute between us may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action).
If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court. Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Definition of Dispute
Except as described below, the term “Dispute” in this Arbitration Agreement and Class Action Waiver means any dispute, claim, or controversy between you and Equinox Hotels regarding your access to or use of the Sites, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, and includes the validity, enforceability or scope of these Terms, except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver.
However, “Disputes” SHALL NOT include claims that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable, or any claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.
How Will the Arbitration Work?
Either you or Equinox Hotels may initiate arbitration proceedings. The arbitration will be conducted before a single arbitrator. The arbitration will be an individual arbitration, and shall in no event be commenced as a representative or class arbitration.
If you or Equinox Hotels initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:
- For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.
- Which particular rules apply in AAA arbitration will depend on how much money is at issue. For less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes/Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
- If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, Equinox Hotels will pay all arbitrator’s costs and expenses. If not, those costs will be paid as specified in the above-referenced rules.
Where Will the Arbitration Be Held?
You can bring the arbitration in either New York or in the state where you live if there is a JAMS or AAA in that state. In the event that Equinox Hotels initiates an arbitration, it will only do so in the state where you live before either JAMS or AAA, unless there is no JAMS or AAA in your state, in which case Equinox Hotels may initiate the arbitration in New York. As set forth in “Governing Law” section below, the arbitrator will apply New York law.
ACCESS TO THE SITES
The Sites are intended for use by adults who reside in the United States, or those adults outside of the United States who, by using the Sites, consent to use of the Sites in accordance with United States laws and these Terms. If you choose to access the Sites from locations outside of the United States, you do so on your own initiative and at your own risk. By using or attempting to use the Sites, you are representing to Equinox that you meet the foregoing eligibility requirements and have the legal capacity to enter into and be bound by these Terms.
You are solely responsible for any charges incurred in obtaining access to the Sites, including without limitation charges from your Internet service provider and/or wireless carrier.
Equinox Hotels reserves the right to render the Sites, in whole or in part, temporarily or permanently unavailable or to otherwise terminate, suspend access to, replace, or modify the Sites or any portion thereof, at any time and for any or no reason, without prior notice or liability to you.
Some portions of the Sites may invite or require you to create an account and associated log-in credentials, and you may not be able to access certain content, features, functionalities and services of the Sites without creating and logging into your account. You agree to provide true, accurate and current information when creating an account, and you are responsible for updating your account information as needed to ensure it remains current. You are responsible for maintaining the confidentiality of your log-in credentials, and you hereby acknowledge and agree that you are fully responsible and liable for all usage and activities that occur under your account, whether authorized by you or not.
You agree to notify Equinox Hotels immediately if you know of or suspect any unauthorized use of your account or password or any other breach of security related to your account. Notwithstanding anything to the contrary in these Terms, Equinox Hotels reserves the right to deny the creation of, suspend access to or terminate any account(s), or to remove or modify content, features, functionalities and/or services available to account holders, at any time in its sole discretion and without prior notice or liability to you.
USING THE SITES
Subject to your compliance with these Terms, Equinox Hotels gives you the limited, non-exclusive, non-transferable, and revocable right to access and use the Sites solely as permitted in these Terms. However, Equinox Hotels does not give you any right to, and you hereby agree not to engage in any of the following activities, unless you have obtained Equinox Hotels’ express written permission:
- Use the Sites or any portion thereof for any commercial purpose including without limitation by selling, renting, leasing, assigning, transferring, hosting, or otherwise commercially exploiting the Sites or any portion thereof.
- Use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content.
- Use the Sites for unlawful purposes.
- Copy, stream, reproduce, duplicate, “scrape”, archive, store (other than standard browser caching), download, publish, modify, make derivative works of, reverse engineer, translate, or distribute the Sites or any portion thereof by any means, other than as expressly allowed by these Terms or as otherwise clearly contemplated by the features and functionalities of the Sites. You may also print or save to your computer, phone or personal device a reasonable number of pages or Content from the Sites, but solely for your own personal, internal and non-commercial purposes.
- Remove, alter, bypass, avoid or circumvent any copyright, trademark or other proprietary notice, digital rights management mechanisms or other content protection measures included in or associated with the Sites or any Content. Similarly, you may not modify, remove, or otherwise interfere with any embedded player that may made available in connection with certain Content.
- Use any software robots, spiders, crawlers, or similar data mining, gathering or extraction tools or methods, whether automated, programmed or manual, including without limitation to access, acquire, copy, monitor or make submissions through any portion of the Sites.
- Knowingly or intentionally take any other action that may impose an unreasonable burden or load on the Sites or its servers and infrastructure.
Any unauthorized use by you, or otherwise under your account or on your computer or personal device, of the Sites any portion thereof will immediately terminate the limited rights granted to you under these Terms, and such termination will be without prejudice to any other right or remedy Equinox Hotels may have under applicable law or in equity.
As between you and Equinox Hotels, excluding any Comments (as defined below), Equinox Hotels and its licensors own the Sites and all content displayed or made available on or through, or otherwise included in, the Sites, including without limitation all text, video clips, audio clips, graphics, trademarks, service marks, trade names, logos, slogans, icons, images and photographs, data, information, code and software, and other content, regardless of whether registered or unregistered, and any combinations and compilations thereof (collectively, “Content”). The Sites and Content, including the selection, coordination, arrangement and enhancement of Content and the design, layout and “look and feel” of the Sites, constitute valuable intellectual property of Equinox Hotels and its licensors, and are protected by applicable copyright, trademark and other applicable intellectual property rights and laws.
The Sites and Content are licensed, not sold, to you, and your limited rights to access and use the Sites and Content are conditioned upon your compliance with these Terms. No act of downloading or copying from, or otherwise using, the Sites, even with Equinox Hotels’ permission, will transfer any title, interest or right in or to the Sites or Content to you. Equinox Hotels and its licensors hereby expressly reserve all rights not expressly granted in and to the Sites and Content, and may revoke your license to use any part of the Sites or Content at any time.
We welcome your feedback regarding the Sites, as well as our hotels, services, products and other offerings (collectively, the “Equinox Properties”). However, please understand that if you choose to submit any comments, reviews, feedback, notes, messages, ideas, suggestions or other communications about or relating to the Equinox Properties (collectively, “Comments“), whether by posting on, or submitted through the Sites, or otherwise sending such Comments to Equinox Hotels, you are granting Equinox Hotels a nonexclusive, perpetual, royalty-free, irrevocable, sublicensable, and transferable license to use, reproduce, modify, disclose, publish, distribute, create derivative works from and otherwise exploit such Comments for any purpose whatsoever anywhere in the world, without restriction or liability and without notifying or compensating you in any way, and you hereby agree to waive any and claims against Equinox Hotels in connection with the foregoing. Equinox Hotels may, but is not obligated to, provide attribution of your Comment, and you waive any moral rights you may have in such Comments.
If you choose to post, submit or otherwise send to Equinox Hotels any Comments, you are acknowledging and agreeing that: (1) you possess all necessary rights, consents and licenses to grant to Equinox Hotels the rights to such Comments as set forth in this Section; (2) Equinox Hotels has no obligation to review, publish or use the Comments or to keep it confidential. You will not post or submit any Comment that is misleading, false, obscene, libelous, lewd, defamatory, illegal, offensive, inflammatory, or otherwise objectionable. Equinox Hotels reserves the right to block, refuse, delete, remove or edit, in whole or in part, any Comments that violate these Terms or is otherwise objectionable, as determined by Equinox Hotels in its sole discretion. Equinox Hotels assumes no liability in connection with your use of any Comments published on the Sites, including any errors or omissions contained in such Comments, or for any loss or damage incurred as a result of your use of any Comments.
THIRD PARTY SITES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EQUINOX HOTELS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD-PARTY SITES AND HAS NO RESPONSIBILITY FOR SUCH THIRD-PARTY SITES OR THE CONTENTS, FEATURES OR OPERATION OF SUCH THIRD-PARTY SITES. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO ACCESS AND USE ANY THIRD-PARTY SITE IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EQUINOX HOTELS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF OR RELIANCE ON ANY THIRD-PARTY SITES.
While we endeavor to provide the best digital experience we can, including without limitation by offering accurate and current content, we cannot and do not guarantee that the Sites or any portion thereof will always be fully-functional, current or accurate. For up-to-date information on rates, availability, amenities and any other information regarding any Equinox hotel, please contact the relevant Equinox hotel or our corporate offices, as described in the “Contact Us” section below.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SITES IS AT YOUR SOLE RISK, AND THAT THE SITES, AND ALL ASPECTS THEREOF, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EQUINOX HOTELS MAKES NO REPRESENTATIONS OR WARRANTIES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION: (1) WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE; (2) WARRANTIES THAT THE SITES WILL MEET YOUR REQUIREMENTS, OR OPERATE WITH THE DEVICES, HARDWARE OR SOFTWARE YOU USE; OR (3) WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITES WILL BE AVAILABLE, UNINTERRUPTED, CURRENT, OR FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR CODE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
YOU ALONE ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER HARDWARE, SOFTWARE, SYSTEMS, AND NETWORKS, ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY INFORMATION FROM THE SITES, AND FOR ANY OTHER DAMAGE THAT MAY BE INCURRED.
LIMITATIONS OF LIABILITY
You agree that, to the maximum extent permitted by applicable law, your sole and exclusive remedy for any problems or dissatisfaction with the Sites is to stop using and, where applicable, uninstall the Sites.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EQUINOX HOTELS, ITS PARENTS, SUBSIDIARIES OR OTHER AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SERVICE PROVIDERS, AGENTS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “EQUINOX HOTELS GROUP”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF USE, LOST DATA, LOST BUSINESS OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE SITES, OR THESE TERMS.
IN ADDITION, IF AND TO THE EXTENT EQUINOX HOTELS IS LIABLE FOR ANY DIRECT DAMAGES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SITES OR THESE TERMS, THEN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EQUINOX HOTELS FOR SUCH DIRECT DAMAGES WILL BE LIMITED TO TEN DOLLARS ($10.00 USD), EVEN IF THIS REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF, PURSUANT TO APPLICABLE STATE LAW, THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PERMITTED, THE LIABILITY OF EQUINOX HOTELS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold the Equinox Hotels Group harmless from and against any and all claims, liabilities, losses, damages, costs, demands, complaints, actions, judgments, settlements, fines, penalties, costs, and expenses (including without limitation reasonable attorneys’ fees), arising out of or in connection with: (1) your access to and/or use of the Sites or any portion thereof; (2) your Comments; (3) your failure to comply with these Terms or with any applicable law, rule or regulation; (4) your infringement, misappropriation or violation of the Sites or Content or of any third party’s intellectual property right; or (5) any activity occurring by or through your account, whether taken by you or another person accessing or using your account, with or without authorization.
Equinox Hotels will use reasonable efforts to notify you of any claim, action or proceeding subject to the foregoing paragraph once it becomes aware of it, but any failure to provide you with notice shall not limit your indemnification obligations unless you can establish actual prejudice resulted from such failure. Equinox Hotels reserves the right, at your expense, to assume the exclusive defense and control of any claim, action or proceeding for which you are required to provide indemnification, and you agree to cooperate and assist with our defense of these claims. You may not settle any claims, actions or proceedings for which you are required to provide indemnification, without Equinox Hotels’ prior written consent.
You may terminate these Terms at any time by ceasing to access and use the Sites. Please understand, however, if you subsequently decide to resume accessing and using any part of the Sites, you will again be bound by the then-current Terms. We may terminate these Terms, or otherwise terminate, suspend or restrict your access to and use of the Sites, in whole or in part, at any time and without prior notice or liability to you, for any reason, including without limitation your failure to comply with any portion of these Terms.
However, even after these Terms have been terminated or your access to the Sites has ended, the sections entitled “Arbitration Agreement and Class Action Waiver,” “Intellectual Property,” “User Comments,” “Disclaimers,” “Limitations of Liability,” “Indemnification,” “Governing Law,” “General,” and any other provision which by its nature is intended to survive, will survive that termination.
These Terms will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles, except to the extent that the Federal Arbitration Act governs the Arbitration Agreement, as provided in these Terms. Except as provided above as to those Disputes you or Equinox Hotels submit to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), all claims, disputes and matters arising hereunder shall be submitted exclusively to the jurisdiction of the federal and state courts of competent jurisdiction located in New York City, New York, and you and Equinox Hotels each hereby irrevocably consent to the jurisdiction of such courts and waives all objections thereto.
These Terms, together with the Additional Terms below and any other terms and conditions that may be made available with respect to certain Sites or portions thereof, constitute the complete and exclusive agreement between you and Equinox Hotels concerning your access to and use of the Sites, and supersede and govern over all prior proposals, agreement or other communications. Nothing in these Terms shall be construed as creating any agency, partnership or other form of joint enterprise between you and Equinox Hotels. Our failure to enforce any provision or exercise any right under these Terms will not constitute a waiver of such provision or right, nor will any waiver of any breach of these Terms act as a waiver of any other provision or a waiver of any future breaches. Any waiver of any provision of these Terms will be effective only if in writing and signed by Equinox Hotels.
If any provision of these Terms is declared void, unenforceable or invalid by a court of competent jurisdiction, the provision will be enforced to the maximum extent permitted by law, and the other provisions of these Terms will remain unaffected and in full force and effect. If necessary, Equinox Hotels will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent. We may assign our rights and delegate our duties under these Terms at any time to any party without notice to you. You may not assign these Terms without our prior written consent. The headings in these Terms are for convenience only and do not affect the interpretation of these Terms. These Terms will inure to the benefit of Equinox Hotels’ successors and assigns.
Equinox Hotels’ corporate offices are located at 35 Hudson Yards New York. If you have questions regarding these Terms, or our Sites, please contact us at firstname.lastname@example.org. Your feedback is always welcome and appreciated.