Terms of Service
Last Updated: April 8, 2021
Thank you for visiting! The Infatuation provides reviews of (which may include reviews by The Infatuation and peer reviews and ratings by our users), information about and commentary on restaurants and other places to get great (and sometimes not so great) food through our websites located at theinfatuation.com and zagat.com (each a “Site”, and collectively the “Sites”) and mobile application(s) (together with the Sites, the “Services”). If you have signed up for Membership (as defined below), in connection with your use of The Infatuation, additional details relating to current Membership-only Services may also be found at www.theinfatuation.com/new-york/membership. The Services are operated by The Infatuation Inc. (together with its successors and assigns, “The Infatuation”). ZAGAT is a trademark of The Infatuation.
These Terms of Service (“Terms”) govern your access to and use of the Services, so please read them carefully before using the Services. As our business grows and we add new functionality to the Services, we may revise these Terms periodically. If we do, we will post the changes here. Your continued use of the Sites after any changes are posted constitutes your acceptance of the new Terms. We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen 914) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE INFATUATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE NAY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
1. THE SERVICES
Modifications to Services & Data
The Services may change over time as we add more features and functionality. We may modify, suspend or discontinue, temporarily or permanently, the Services (or a part of the Services) from time to time without prior notice to you. Please backup your data as The Infatuation has no responsibility for the deletion or failure to store any data or other content maintained or transmitted by the Services. You agree that The Infatuation will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
You acknowledge that The Infatuation may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on The Infatuation’s servers on your behalf. You agree that The Infatuation has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that The Infatuation reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that The Infatuation reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Services include certain services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Sites from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding The Infatuation and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your old number.
2. ACCESS AND USE OF THE SERVICES
Your Registration Obligations:
User Account, Password and Security:
You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify The Infatuation of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Services. The Infatuation will not be liable for any loss or damage arising from your failure to comply with this paragraph.
We offer certain perks and benefits to users of The Infatuation-related Services who have signed up for our annual membership program (“Membership”). Click here www.theinfatuation.com/new-york/membership for information about Membership, including our current Membership perks and annual fees. From time to time, we may offer different Membership perks, and the fees for such membership may vary. The Membership perks and benefits may change over time as we operate the Membership program. We reserve the right to modify, suspend or discontinue, temporarily or permanently, any certain Membership benefits or perks from time to time with prior notice to you. We will notify you, either through the Services user interface, in an email notification or through other reasonable means, of any material changes to your Membership. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or Membership, or changes made for legal reasons will be effective immediately. The Membership fee is non-refundable except as expressly set forth in these Terms. We reserve the right to accept or refuse Membership in our discretion. Many of the perks and/or benefits of Membership, including but not limited to event access, are of a limited nature and are offered to members on a first-come, first-serve basis. The Infatuation makes no guarantee that any of the listed perks or benefits of Membership will be available at the time you request such perks or benefits.
If you sign up for your Membership and are billed by us, then the following billing and renewal terms will apply to your membership. Taxes may apply on the fee for Membership. You will be required to select a payment plan and provide us information regarding your credit card or other payment instrument. You represent and warrant to The Infatuation that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If all eligible payment methods we have on file for you are declined for payment of your membership fee, you must provide us a new eligible payment method promptly or your membership will be canceled. If you provide us with a new eligible payment method and are successfully charged, your new membership period will be based on the original renewal date and not the date of the successful charge.
You agree to pay The Infatuation the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms. You hereby authorize The Infatuation to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let The Infatuation know within thirty (30) days after the date that The Infatuation charges you. We reserve the right to change prices and/or fees for Membership. If we do change prices, we will provide notice of the change on the relevant Site, otherwise through the Service, or in email to you, at our option, at least 30 days before the change is to take effect. Your continued use of the Services after the price change becomes effective constitutes your agreement to pay the changed amount. You may cancel your Membership any time by visiting your Account and adjusting your membership settings. If you cancel your Membership, The Infatuation will not refund any membership fees you have already paid.
Membership will last for one year from the date of sign-up and shall automatically renew for successive periods of one year unless cancelled in advance prior to auto-renewal.
UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW, YOU UNDERSTAND YOUR MEMBERSHIP WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
We may terminate your Membership at our discretion without notice. If we do so, we will give you a prorated refund based on the number of full months remaining in your Membership. However, we will not give any refund for termination related to conduct that we determine, in our discretion, violates these Terms or any applicable law, involves fraud or misuse of the Membership, or is harmful to our interests or another user. Our failure to insist upon or enforce your strict compliance with these Terms will not constitute a waiver of any of our rights.
3. CONDITIONS OF USE
You must be 13 years of age to use the Services, with or without registering
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, and other materials (“content”) that you make available to The Infatuation, including by uploading, posting, publishing, or displaying (hereinafter, “upload(ing)”) via the Services or by emailing, messaging or otherwise making available to other users of the Services (collectively, “User Content”). The following are examples of the kinds of content and/or uses that are illegal or prohibited by The Infatuation. The Infatuation reserves the right to investigate and take appropriate legal action against anyone who, in The Infatuation’s sole discretion, violates this provision, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting the violator to law enforcement authorities. You agree to not use the Services to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically, discriminatory, or otherwise objectionable; or (vii) in the sole judgment of The Infatuation, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose The Infatuation or its users to any harm or liability of any type;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
- obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Services;
- circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Services Content (as defined below)) available on or through the Services, including through the use of virtual private networks;
- post any fake or defamatory review, trade reviews with others, or compensate someone or be compensated to post, refrain from posting, or remove a review; or
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on The Infatuation’s technology infrastructure or otherwise make excessive traffic demands of the Services.
4. SPECIAL NOTICE FOR INTERNATIONAL USE; EXPORT CONTROLS:
Software (defined below) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
5 .COMMERCIAL USE:
Unless otherwise expressly authorized herein or in the Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
6. THIRD PARTY DISTRIBUTION CHANNELS:
The Infatuation offers Software applications, which may include a Mobile App, that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”, and such software, “Apple-Enabled Software”) or third parties that operate using the Android operating system, which is owned by Google Inc. (“Google” which, together with Apple, is referred to herein as the “Distribution Channel”; such software together with the Apple-Enabled Software, the “Distribution Channel-Enabled Software”).. If you obtain such Distribution Channel-Enabled Software, you may be subject to additional terms of the Distribution Channel. These Terms are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
App License: Subject to these Terms, The Infatuation hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the Mobile App on one mobile device and (b) use the Mobile App for your own personal use solely to access and use the Services. For clarity, the foregoing is not intended to prohibit you from installing the Mobile App for another device on which you also agreed to these Terms. Each instance of the Terms that you agree to in connection with downloading a Mobile App grants you the aforementioned rights in connection with the installation and use of the Mobile App on one device.
With respect to the Distribution Channel-Enabled Software, in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:
- The Infatuation and you acknowledge that these Terms are concluded between The Infatuation and you only, and not with the Distribution Channel, and that as between The Infatuation and the Distribution Channel, The Infatuation, not the Distribution Channel , is solely responsible for the Distribution Channel-Enabled Software and the content thereof.
- You may not use the Distribution Channel-Enabled Software in any manner that is in violation of or inconsistent with the usage rules set forth for Distribution Channel-Enabled Software in, or otherwise be in conflict with, the applicable distribution channel terms of service (the “App Store Terms of Service”).
- Your license to use the Distribution Channel-Enabled Software is limited to a non-transferable license to use the Distribution Channel-Enabled Software on an iOS Product or Android-based product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service.
- The Distribution Channel has no obligation whatsoever to provide any maintenance or support services with respect to the Distribution Channel-Enabled Software.
- The Distribution Channel is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be The Infatuation’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- The Infatuation and you acknowledge that The Infatuation, not the Distribution Channel , is responsible for addressing any claims of you or any third party relating to the Distribution Channel-Enabled Software or your possession and/or use of that Distribution Channel-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Distribution Channel-Enabled fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Distribution Channel-Enabled Software or the end-user’s possession and use of that Distribution Channel-Enabled Software infringes that third party’s intellectual property rights, as between The Infatuation and the Distribution Channel, The Infatuation, not Distribution Channel, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Distribution Channel-Enabled Software, they should be directed to The Infatuation as follows: email@example.com The Infatuation Inc. 424 Broadway, 5th Fl. New York, NY 10013
The Google Play marketplace is owned and operated by Google. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, your use of Google Play is subject to the Google Play Business and Program Policies (http://play.google.com/about/android-developer-policies.html). The Google Play Market Terms of Service, Google Play Business and Program Policies, and Google Terms of Service will take precedence in that order in the event of a conflict between them, to the extent of such conflict.
The Infatuation and you acknowledge and agree that the Distribution Channel, and Distribution Channel’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Distribution Channel-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, the Distribution Channel will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Distribution Channel-Enabled Software as a third party beneficiary thereof.
7. INTELLECTUAL PROPERTY RIGHTS
Services Content, Software and Trademarks:
The Services may contain content (“Services Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by The Infatuation, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part. Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited. If you are eligible to use the Services, you are granted a limited license to access and use the Services and the Services Content and to download or print a copy of the Services Content solely for your personal, non-commercial use, provided that you do not remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Services. You are not permitted to use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Sites or the Services Content other than as authorized by these Terms is strictly prohibited and will terminate the license granted here. The technology and software underlying the Services are the property of The Infatuation, our affiliates and our partners (the “Software”). You agree not to reverse engineer, reverse assemble or otherwise attempt to discover any source code version of the Software. If you are blocked by The Infatuation from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). We reserve all right, title and interest in and to the Software and Services Content, except for the limited rights expressly granted in these Terms. Any rights not expressly granted herein are reserved by The Infatuation.
The Infatuation names and logos, including ZAGAT, are trademarks and service marks of The Infatuation (collectively the “Infatuation Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to The Infatuation. Nothing in this Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Infatuation Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of the Infatuation Trademarks will inure to our exclusive benefit. You may not use any of Infatuation Trademarks without our prior written permission.
Third Party Material:
Under no circumstances will The Infatuation be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that The Infatuation does not pre-screen content, but that The Infatuation and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, The Infatuation and its designees will have the right to remove any content that violates these Terms or is deemed by The Infatuation, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Posted on or through the Services:
You are solely responsible for the content and other materials you upload, post on or through the Services or the Sites or transmit to or share with other users or recipients (collectively, “User Content”), and you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. You may not post any content that you did not create or that you do not own. By posting User Content you hereby grant and will grant The Infatuation and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable (directly and indirectly through multiple tiers), perpetual, irrevocable license to copy, display, transmit, distribute, store, modify and otherwise use your User Content in connection with the operation, advertising or marketing of the Services, in any form now known or later developed. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content.
We welcome your comments, questions, suggestions and feedback about the Sites or the Services (“Submissions”)! But be aware that any comments or suggestions you make to The Infatuation are non-confidential and become the property of The Infatuation, which will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that The Infatuation may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of The Infatuation, its users and the public. You understand that the technical processing and transmission of the Services, including your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
User Content (including any that may have been created by users employed or contracted by The Infatuation) does not necessarily reflect the opinion of The Infatuation. Except as required by law, we have no obligation to retain or provide you with copies of your User Content, and we do not guarantee any confidentiality with respect to your User Content. We reserve the right to remove, screen, edit, or reinstate User Content at our sole discretion for any reason or no reason, and without notice to you.
The Infatuation respects the intellectual property of others, and we ask our users to do the same. The Infatuation will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our Copyright Agent with the following information (Subject line: “DMCA Takedown Request”):
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- identification of the copyrighted work or other intellectual property that you claim has been infringed or, if multiple copyrighted works or other intellectual property are covered by a single notification, a representative list of such works or other intellectual property;
- identification of the content that is claimed to be infringing or to be the subject of infringing activity, and where the content that you claim is infringing is located on the Sites, with enough detail that we may find it on the Sites;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the behalf of the owner of the copyright or intellectual property that is allegedly infringed. .
The Infatuation’s Copyright Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
You may also contact the Copyright Agent by mail or phone at:
The Infatuation Inc.
New York, NY 10013
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement by you, made under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content to be removed or disabled;
- your address, telephone number, and email address; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Southern District of New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, The Infatuation will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it within ten (10) business days. Unless the owner of the applicable copyrighted work or other intellectual property files an action seeking a court order against The Infatuation, member, or user, the removed content may be replaced, or access to it restored, within ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy
In accordance with the DMCA and other applicable law, The Infatuation has adopted a policy of terminating, in appropriate circumstances and at The Infatuation’s sole discretion, the accounts of users and/or members who are deemed to be repeat infringers. Any user account that receives three (3) DMCA strikes will be considered a repeat infringer. A “DMCA strike” accrues each time that material is removed from a user’s account due to a DMCA notice. The Infatuation may group multiple DMCA notices received within a short period of time as a single DMCA strike. The Infatuation may also at its sole discretion limit access to the Services and/or terminate the accounts of any users and/or members who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
8. THIRD PARTY LINKS AND CONTENT
The Services may provide, or third parties may provide, links or otherwise direct users to other sites and resources on the Internet. The Infatuation has no control over such sites and resources and The Infatuation is not responsible for and does not endorse such sites and resources. The Infatuation will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that The Infatuation is not liable for any loss or claim that you may have against any such third party.
By using the Services you agree to release, discharge and hold harmless The Infatuation and its subsidiaries and affiliates (the “Infatuation Entities”) from any and all losses, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to the Services or any act or omission by any person, including without limitation, any dispute between you and any other person or regarding any content posted on the Sites or the Services. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes, without limitation, any claim resulting from delay and the criminal acts of others. If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
You agree to indemnify and hold The Infatuation and the Infatuation Entities harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of or relating to the Services, including without limitation, any content posted to or transmitted through the Services, or publicly distributed on the web, your use of the Services, your connection to the Services, your violation of the Terms or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee.
11. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE INFATUATION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THE INFATUATION MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR YOUR CHILDREN.
12. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE INFATUATION AND THE INFATUATION ENTITIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE INFATUATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL THE INFATUATION’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THE INFATUATION IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
You agree that The Infatuation, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if The Infatuation believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Services, may be referred to appropriate law enforcement authorities. The Infatuation may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms may be effected without prior notice, and acknowledge and agree that The Infatuation may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that The Infatuation will not be liable to you or any third party for any termination of your access to the Services.
14. DISPUTE RESOLUTION BY BINDING ARBITRATION: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to ArbitrateThis Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and The Infatuation, whether arising out of or relating to these Terms (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and The Infatuation are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized ReliefPYOU AND THE INFATUATION AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE INFATUATION AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute ResolutionThe Infatuation is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to The Infatuation should be sent to The Infatuation Inc., Attn: Legal Department, 424 Broadway, 5th Fl., New York, NY 10013 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If The Infatuation and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or The Infatuation may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by The Infatuation or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or The Infatuation is entitled.
Arbitration ProceduresArbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.Unless The Infatuation and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, The Infatuation agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of ArbitrationPayment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, The Infatuation will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, The Infatuation will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, The Infatuation will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
ConfidentialityAll aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
SeverabilityIf a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
Future Changes to Arbitration AgreementNotwithstanding any provision in these Terms to the contrary, The Infatuation agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending The Infatuation written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
15. USER DISPUTES
You agree that you are solely responsible for your interactions with any other user in connection with the Services and The Infatuation will have no liability or responsibility with respect thereto. The Infatuation reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Services.
The Terms constitute the entire agreement between you and The Infatuation and govern your use of the Services, superseding any prior agreements between you and The Infatuation with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The Terms will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and The Infatuation agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York. . The failure of The Infatuation to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of The Infatuation, but The Infatuation may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Services.
17. YOUR PRIVACY
18. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at The Infatuation, Inc., Attn: Legal Department, 424 Broadway, 5th Fl., New York, NY 10013
19. QUESTIONS? CONCERNS? SUGGESTIONS?
Please contact us email@example.com to report any violations of these Terms or to pose any questions regarding this Terms or the Services.