U.S Terms Of Use
U.S. Terms of Use
Effective: November 15, 2021
1. Contractual Relationship
These Terms of Use (“Terms”) govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, and services provided by BOH Partners LLC (the “Services”) made available in the United States and its territories and possessions by BOH Partners LLC and its parents, subsidiaries, representatives, affiliates, licensees, officers and directors (collectively, “BOH”). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BOH. In these Terms, the words “including” and “include” mean “including, but not limited to.”
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede all prior agreements or arrangements with you. BOH may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH BOH ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
BOH may amend the Terms from time to time. Amendments will be effective upon BOH’s posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s) website. Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.
You hereby acknowledge and agree that BOH may collect certain personal information from you in connection with your use, and the provision of, the Services and you hereby consent to and agree that BOH may use your personal or business information in whatever manner BOH may deem necessary in connection with the Services.
2. Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against BOH on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against BOH, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against BOH by someone else.
Agreement to Binding Arbitration Between You and BOH.
You and BOH agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to, or use of, the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and BOH, and not in a court of law.
You acknowledge and agree that you and BOH are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any current or future purported class action or representative proceeding. Unless both you and BOH otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and BOH each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.
Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator will be either (1) a retired judge, or (2) an attorney specifically licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
Location and Procedure.
Unless you and BOH otherwise agree, the arbitration will be conducted in New York County, New York. If your claim does not exceed $10,000.00, then the arbitration will be conducted solely on the basis of documents you and BOH submit to the Arbitrator, unless you request a hearing, or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000.00, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.
Fees.
If you choose to initiate any arbitration proceeding, you will be solely responsible to pay any AAA filing, administrative or arbitrator fees. However, if at the conclusion of any arbitration, the arbitrator decides in your favor with regards to the substance of your claim, the arbitrator may order BOH to pay fifty percent (50%) of the AAA filing fees and arbitrator compensation. If BOH prevails in any arbitration, BOH shall be entitled to recover from you, its reasonable attorneys’ fees, expert costs, court costs and all expenses incurred with respect to such arbitration, in addition to any other relief to which BOH may be entitled.
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that the state or federal courts located in New York County, New York, shall be the sole and exclusive venue for such litigation, you consent to the personal jurisdiction of such courts and the litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. If BOH prevails in any such legal proceeding, BOH shall be entitled to recover from you, its reasonable attorneys’ fees, expert costs, court costs and all expenses incurred with respect to such legal proceeding, in addition to any other relief to which BOH may be entitled.
License.
Subject to your compliance with these Terms, BOH grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use any content, information and related materials that may be made available in connection with the Services, in each case exclusively for your personal or commercial use. However, you shall have no right to grant a license to access and use any content, information and related materials that may be made available in connection with the Services. Any rights not expressly granted herein are reserved by BOH and BOH’s licensors.
Restrictions.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit any intellectual property related to the Services except as expressly permitted by BOH; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under BOH’s various brands. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of BOH’s subsidiaries, affiliates and/or licensees; or (ii) independent Third-Party providers.
Ownership.
The Services and all rights therein are and shall remain BOH’s property or the property of BOH’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner BOH’s company names, logos, product and service names, trademarks or services marks or those of BOH’s licensees or licensors.
4. Access and Use of the Services
User Accounts.
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to BOH certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by BOH. Account registration may also require you to submit to BOH certain business-related information such as name, EIN number, business address, telephone number. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by BOH in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage to any third party. In certain instances, you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.
5. Payment
You hereby acknowledge and agree to all payment terms or protocols determined by BOH. You acknowledge and agree that BOH may withhold any payments that may be due to you in connection with your use of the Services, without interest or penalty of any kind. You hereby acknowledge and agree that any payments you receive from BOH are inclusive of any taxes that may be due and that you are responsible for paying taxes that may be owed in connection with any payments you receive from BOH and that BOH is in no way responsible for any taxes that may be owed in connection with any payments made to you.
All Charges and payments due to you will be enabled by BOH using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that BOH may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by BOH.
As between you and BOH, BOH reserves the right to establish, remove and/or revise Charges for any or all services obtained through the use of the Services at any time in BOH’s sole discretion.
6. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BOH DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BOH MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BOH DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
BOH SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BOH, EVEN IF BOH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BOH SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY, EVEN IF BOH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BOH SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BOH’S REASONABLE CONTROL.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF, OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BOH’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON BOH’S CHOICE OF LAW PROVISION SET FORTH BELOW.
Indemnity.
You agree to indemnify and hold BOH and its affiliates, subsidiaries, licensees and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including reasonable attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; or (iii) your violation of the rights of any third party.
7. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-New Yorkers to assert claims under New York law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of New York law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending New York law to you if you do not otherwise reside in New York. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
Notice.
BOH may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to BOH, with such notice deemed given when received by BOH, at any time by first class mail or pre-paid post to our registered agent for service of process, SLAPER & LAPIDOT LLP, 7001 Brush Hollow Road, Suite 214, Westbury, NY 11590, with a copy, via the same mode, addressed to: Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Attention: Seth L. Berman, Esq., 3 Dakota Drive, Suite 300, Lake Success, NY 11042 and via email to sberman@abramslaw.com
General.
You may not assign these Terms without BOH’s prior written approval. BOH may assign these Terms without your consent to: (i) a subsidiary, affiliate or licensee; (ii) an acquirer of BOH’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, BOH or any Third Party as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. BOH’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BOH in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.