The Ensemble's Terms of Service
Effective Date: 5/25/2021
The following Terms of Service (“Terms”) between you and Caastle Inc. (dba The Ensemble) (“we,” “our,” “us,” or “Ensemble”) describes the terms and conditions on which you may access and use the borrow.theensemble.me ( the “Site”), The Ensemble mobile app (the “App”), and related services (together with the Site, the App, and our Content (as defined below) the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.
The disclaimers, terms, and conditions in these Terms are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose. If you choose to purchase or rent any clothing or accessories (“Products”) through our Services, your use of the Services is further conditioned on the Sale and Rental Agreement, incorporated here by reference. In the event of a conflict between these Terms on the one hand and either the Sale and Rental Agreement (if applicable) on the other hand, the terms and conditions that are more protective of The Ensemble shall control.
BY ACCESSING OUR SERVICE, YOU ARE ACCEPTING THESE TERMS. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO THESE TERMS WILL APPLY RETROACTIVELY.
IMPORTANT NOTICE: Your use of our Services is subject to an arbitration provision in Section 9 requiring all claims to be resolved by way of binding arbitration. By agreeing to these Terms, you and The Ensemble hereby waive any right to participate in a Class-Action lawsuit or class-wide arbitration.
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GENERAL CONDITIONS
A. Eligibility
You must be at least 18 years old to rent or purchase any Products on the Services. Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Services under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase Products via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and any rented or purchased Products, including all legal liability he or she may incur.
B. Modification of the Services or the Terms
We may revise and update these Terms from time to time, and will post the updated Agreement to our Site or App. We will provide you with notice of any changes to these Terms on the Site and App. Any changes to these Terms will not apply retroactively to events that occurred prior to such changes. Your continued use of our Services will constitute your agreement to any new provisions within the revised Agreement.
C. Privacy
To learn more about our privacy practices, please read our Privacy Policy, which is available at theensemble.me/pages/privacy-policy (the “Privacy Policy”).
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Use of the Services
A. The Ensemble Content
All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“The Ensemble Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The Ensemble Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any Ensemble Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include The Ensemble Content. We may update The Ensemble Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to legal@caastle.com. We will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases. We cannot and do not assume any responsibility for your use or misuse of The Ensemble Content or any other information transmitted, monitored, stored, or received while using the Services.
B. Third Party Content
The Services may contain links or references to non-Ensemble websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and The Ensemble is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from The Ensemble, and The Ensemble has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that The Ensemble endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa. You acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third Party Content available on or through our Services. We strongly encourage you to review any separate terms of use and privacy policies governing use of these third party websites and Third Party Content.
C. Acceptable Use Policy
No part of the Services, including The Ensemble Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that The Ensemble authorizes you to view, copy, download, and print The Ensemble Content (such as press releases and FAQs) that is available on the Services, provided that: (a) you use The Ensemble Content solely for your personal, noncommercial, informational purposes; (b) you do not modify The Ensemble Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on The Ensemble Content.
D. Restrictions
You may not use the Services to: (i) transmit any content, information or other materials that are, or which The Ensemble considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, firearms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; (vii) impersonate any other person, including but not limited to, The Ensemble representative; (viii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 13 years of age); (ix) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation, solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; (x) violate these Terms, or any applicable local, state, national or international laws or regulations; or (xi) use our Services or The Ensemble Content to develop a competing service or product.
You also agree that you will not (and will not attempt to or permit any third party to): use any device, software, malicious code or destructive routine intended to damage or otherwise interfere with the proper functioning of our Site, App, servers, or networks connected to our Services or take any other action that interferes with any other person’s use of our Services. You will not reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
E. Delays
There may be delays, omissions, or inaccuracies in the Services, including The Ensemble Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
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Your Content
A. License to Your Content
If you post, upload or make available to The Ensemble or the Services, or otherwise submit to or through The Ensemble as part of your use of the Services, including the Site or App, any information, data, documents, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to The Ensemble a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site and App, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content.
B. Obligations for Submitting Your Content
By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, including Section 2(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize The Ensemble to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
C. No Responsibility
By providing Your Content via the Services, you understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any Your Content. You agree that we are not liable for any legal violation caused by your use or misuse of Your Content or other information transmitted, monitored, stored, or received while using the Services. We reserve the right to amend or delete any of Your Content (along with the right to terminate or restrict use of or access to the Services) that in our sole discretion violates any provision of these Terms.
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YOUR ACCOUNT
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INTELLECTUAL PROPERTY
A. Ownership of the Services
The Services, including The Ensemble Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of The Ensemble and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “The Ensemble” and The Ensemble logo are registered trademarks of The Ensemble., under the applicable laws of the United States and/or other countries. Other Ensemble product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of The Ensemble and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. The Ensemble and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms. Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any Ensemble Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of The Ensemble or such third party that may own such Ensemble Content.
B. Services License
On the condition that you comply with all your obligations under these Terms, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely in connection with your personal, non-commercial purposes. We reserve all rights not otherwise expressly granted by these Terms. If you do not comply with these Terms, we reserve the right to revoke any license granted in these Terms and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in these Terms is strictly prohibited and constitutes a violation of these Terms, which may result in the termination of your right to access and use the Services.
C. Feedback
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that The Ensemble may use your Feedback without restriction or obligation to you or any third party.
D. Notice and Take Down Procedures; Copyright Agent
If you believe any Ensemble Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting The Ensemble’s copyright agent (identified below) and providing the following information: identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the work; identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and a signature or the electronic equivalent from the copyright holder or authorized representative.
The Ensemble's agent for copyright issues relating to the Services is as follows: Copyright Agent. The Ensemble Attn: Legal Dept. 5 Penn Plaza, Floor 4, New York, NY 10001. In an effort to protect the rights of copyright owners, The Ensemble maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of the Services who are repeat infringers.
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MOBILE TERMS
A. Mobile Charges
Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
B. Additional Terms Applicable on the Android Market/Google Play
The following applies to you online if you are using the App from Google Play or the Android Market. The Ensemble and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“Google”), are a party to these Terms, and you will look to The Ensemble or the Client for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Service as found on Google’s websites (located at http://www.google.com/mobile/android/market-tos.html) and the Google Play Terms of Service (located at https://play.google.com/about/play-terms.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. To the extent there is a conflict between any of the terms contained herein and those set forth in the Android Market Terms of Service or Google Play Terms of Service, the Android Market Terms of Service or Google Play Terms of Service will prevail and govern.
C. Additional Terms Applicable on the Apple App Store
The following applies to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and The Ensemble, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and The Ensemble acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and The Ensemble acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, The Ensemble, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and The Ensemble acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
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TERMINATION
A. Termination By You
You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at support@theensemble.me. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.
B. Termination By The Ensemble
Any violation of these Terms, including any of the prohibitions in Section 2(C), may result in suspension or termination of your access to the Services and/or removal of Your Content. The Ensemble may also terminate your account if The Ensemble determines that your conduct poses a risk or liability to The Ensemble, or for any other reason as determined by The Ensemble in its sole discretion.
C. Effects of Termination
The provisions of these Terms that by their content are intended to survive the expiration or termination of these Terms, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of these Terms, will survive the expiration or termination of these Terms for their full statutory period.
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DISCLAIMER OF WARRANTIES; INDEMNIFICATION; LIMITATION OF LIABILITY
A. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 1(F) OF THE SALE AND RENTAL AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED, THAT THE SERVICES AND ANY CONTENT OR INFORMATION FOUND ON THE SERVICES WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
B. Indemnification
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE ENSEMBLE, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, VENDORS, MEMBERS, MANAGERS, EMPLOYEES, DIRECTORS, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (1) YOUR USE OF THE SERVICES, INCLUDING YOUR PURCHASE OF PRODUCTS OR SUBSCRIPTION TO A MEMBERSHIP; (2) YOUR VIOLATION OF THESE TERMS, (3) ANY OF YOUR CONTENT YOU POST OR PROVIDE THROUGH THE SERVICES, (4) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (5) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.
C. Limitation of Liability
YOU EXPRESSLY AGREE TO WAIVE AND RELEASE AND HEREBY WAIVE AND RELEASE, ANY AND ALL CLAIMS AND LIABILITIES AGAINST THE ENSEMBLE THAT ARISE FROM YOUR USE OF THE SERVICES OR, INCLUDING, WITHOUT LIMITATION, YOUR USE OF THE SERVICES IN VIOLATION OF THIS THESE TERMS, THE SALE AND RENTAL AGREEMENT, THE REFERRAL POLICY, OR ANY FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS.
UNDER NO CIRCUMSTANCES, SHALL THE ENSEMBLE OR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES.
THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR OTHERWISE, INCLUDING LOSS OF DATA, INCOME OR PROFITS), WHETHER IN CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, OR OTHER TORTIOUS ACTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF THE ENSEMBLE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ARE DISSATISFIED WITH THE SERVICES, ANY OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICES, THAT SUCH USAGE IS AT YOUR SOLE RISK AND YOU ACCEPT THE TERMS AND CONDITIONS STATED IN THESE TERMS, INCLUDING THE LIMITATION OF LIABILITY AND DISCLAIMERS SET FORTH HEREIN.
IN THE EVENT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES CONTAINED IN THESE TERMS SHALL BE DETERMINED BY A COURT OR ARBITRATOR TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF THE ENSEMBLE AND ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR CONTRACTORS UNDER THESE TERMS OR THE USE OR EXPLOITATION OF ANY OR ALL PARTS OF THE SERVICES IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST THE ENSEMBLE.
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DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
This Section 9 includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
A. Informal Process First
Both you and The Ensemble agree that in the event of any dispute between us, you and The Ensemble will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
B. Mandatory Arbitration of Disputes
All disputes between you and The Ensemble will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to these Terms, including with respect to the interpretation of any provision of these Terms or concerning the performance or obligations of The Ensemble or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either The Ensemble or you pursuant to the following conditions:
(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will be conducted at a JAMS facility in your area or at a JAMS facility in New York City.
(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
(e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, with The Ensemble remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.
(f) Litigation. Either party also may, without waiving any remedy under these Terms, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms.
C. Class Action Waiver
The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and The Ensemble shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that these Terms specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, the parties each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
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MISCELLANEOUS
A. Communications
You consent to receive communications from us, including email, text messages, calls, direct mail, and push notifications, including for the purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, and providing other information. We may contact you by telephone calls or text messages, including by an automatic telephone dialing system, at any of the telephone numbers provided by you. Standard message and data rates charged by your mobile carrier may apply to the text messages we send you. You may opt out of receiving communications by emailing support@theensemble.me or calling us at 1-877-378-7381. You acknowledge that opting out of receiving communications may impact your use of the Services.
B. Consent to Do Business Electronically
We use and rely upon electronic records and electronic signatures for the execution and delivery of these Terms and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with these Terms and in performing our obligations and exercising our rights under these Terms. Neither you nor The Ensemble will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
C. Jurisdictional Issues
The Ensemble makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that The Ensemble intends to announce or make available such products or services to the general public, or in your country. Contact The Ensemble at support@theensemble.me to determine which products and services may be available to you.
D. Export Laws
The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the The Ensemble Content, or any part thereof, in any way, in violation of United States law.
E. Equitable Relief
You agree that breach of the provisions of these Terms would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of these Terms by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of these Terms.
F. Governing Law/Venue
These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in New York County, New York, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non convenience.
G. Entire Agreement
These Terms are the entire agreement between you and The Ensemble relating to the subject matter herein and shall not be modified except by The Ensemble in accordance with these Terms, or as otherwise agreed in writing by you and The Ensemble. No employee, agent or other representative of The Ensemble has any authority to bind The Ensemble with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
H. Severability and Waiver
If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
I. Assignment
You may not assign or transfer these Terms or any of your rights or obligations under these Terms. The Ensemble may assign these Terms at any time without notice to you.
J. Force Majeure
The Ensemble will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond The Ensemble’s reasonable control.
K. Contact Us
Please send any questions or comments, or report violations of these Terms, to The Ensemble at support@theensemble.me or The Ensemble, Attn: Legal, 5 Penn Plaza, Floor 4, New York, NY 10001.
A. Registration
Access to the Services requires you to be registered with us via The Ensemble-generated registration form. This form will require you to provide certain requested information (including personal information). At such time, you will be provided with an account and login information including a username and password to successfully complete the registration process. You are the only person authorized to access and use your account. For more information about our collection of personal data about you in connection with account registration on the Services, please review our Privacy Policy
B. Unauthorized Use and Information Changes
You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities related to your account. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
C. Storing Credentials
The Services may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Services. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to The Ensemble or the Services resulting from unauthorized access to the Services from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.