IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE: SECTION 31 OF THESE TERMS OF SERVICE CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH ENSEMBLE ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
IN PARTICULAR, SPACES SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE CITIES. SOME CITIES HAVE LAWS THAT RESTRICT THEIR ABILITY TO HOST PAYING USERS FOR SHORT PERIODS. THESE LAWS ARE OFTEN PART OF A CITY’S ZONING OR ADMINISTRATIVE CODES. IN MANY CITIES, SPACES MUST REGISTER, GET A PERMIT, OR OBTAIN A LICENSE BEFORE CREATING A SPACE. CERTAIN TYPES OF SHORT-TERM BOOKINGS MAY BE PROHIBITED ALTOGETHER. LOCAL GOVERNMENTS VARY GREATLY IN HOW THEY ENFORCE THESE LAWS. PENALTIES MAY INCLUDE FINES OR OTHER ENFORCEMENT. SPACES SHOULD REVIEW LOCAL LAWS BEFORE CREATING A SPACE ON ENSEMBLE.
Ensemble provides an online platform that connects users who have spaces to offer with users seeking to occupy and use such spaces (collectively, the “Services“), which Services are accessible at www.ensemble.co and any other websites through which Ensemble makes the Services available (collectively, the “Site“) and as applications for mobile, tablet and other smart devices and application program interfaces (collectively, the “Application“).
If you are using the Site, Application or Services and you reside in the USA, these Terms of Service are between you and Ensemble App, LLC (hereinafter referred to as “Ensemble“, “we“, “us“, or “our“). Ensemble handles any and all payments and payouts conducted through or in connection with the Site, Application or Services (“Payment Services“). Payment Services provided by Ensemble are subject to the Payments Terms of Service (“Payments Terms“).
“Space” means coworking, executive suites, business centers, shared workspaces and other properties, organizations or groups.
“Ensemble Content” means all Content that Ensemble makes available through the Site, Application, Services, or its related promotional campaigns and official social media channels, including any Content licensed from a third party, but excluding User Content.
“Usage” means a limited license granted by the Space to the User to enter and use the Space for the limited duration, during which time the Space (only where and to the extent permitted by applicable law) retains the right of continued use of the Space, in accordance with the User’s agreement with the Space. Please note, as used on the Site and Services, “Booking” and “Event” “Reservations” have the same meaning as “Usage;” all terms meaning a limited license to enter and use the Space for the duration as defined above.
“Collective Content” means User Content and Ensemble Content.
“Communication” means an email, message via the Application, text message or message to a chat account.
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“User” means a User who has Usage of a Space and/or an Event of Booking Reservation via the Site, Application or Services.
“Space” means a Space that is created by a User as available for Usage via the Site, Application, and Services.
“User” means a person who completes Ensemble’s account registration process, including but not limited to Spaces and Users, as described under “Account Registration” below.
“User Content” means all Content that a User posts, uploads, publishes, submits, transmits, or includes in their Space, User profile or Ensemble promotional campaign to be made available through the Site, Application or Services.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), transient occupancy taxes, tourist or other visitor taxes, accommodation or lodging taxes, fees (such as convention center fees) that Space providers may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
Terms of Service
In addition, certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions, standards, guidelines, or policies posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the Site, Application or Services. Failure to use the Site, Application or Services in accordance with these Terms may subject you to civil and criminal penalties.
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH USERS MAY CREATE SPACES AND USERS MAY USE AND RESERVE DIRECTLY WITH THE SPACES. YOU UNDERSTAND AND AGREE THAT ENSEMBLE IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN SPACES AND USERS, NOR IS ENSEMBLE A REAL ESTATE BROKER, AGENT OR INSURER. ENSEMBLE HAS NO CONTROL OVER THE CONDUCT OF SPACES, USERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY SPACES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IF YOU CHOOSE TO CREATE A SPACE ON ENSEMBLE, YOU UNDERSTAND AND AGREE THAT YOUR RELATIONSHIP WITH ENSEMBLE IS LIMITED TO BEING A USER AND AN INDEPENDENT, THIRD-PARTY CONTRACTOR, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF ENSEMBLE FOR ANY REASON, AND YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF ENSEMBLE. ENSEMBLE DOES NOT CONTROL, AND HAS NO RIGHT TO CONTROL, YOUR SPACE, YOUR OFFLINE ACTIVITIES ASSOCIATED WITH YOUR SPACE, OR ANY OTHER MATTERS RELATED TO ANY SPACE, THAT YOU PROVIDE. AS A USER YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF ENSEMBLE
, INCLUDING BY INAPPROPRIATELY USING ANY ENSEMBLE INTELLECTUAL PROPERTY.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND RECEIVE OUR SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Ensemble reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application and/or provide you notice of the modification by email. We will also update the “Last Updated” date at the top of these Terms. Changes to the Terms will be effective at the time of posting. Your continued access or use of the Site, Application or Services will constitute acceptance of the modified Terms. Additionally, if the modified Terms contain material changes applicable to existing Users (by decreasing your rights or increasing your responsibilities), we will provide you with notice prior to the changes taking effect. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services. If you do not close your Ensemble Account you will be deemed to have accepted the changes.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
For users in the United States, Ensemble will, to the extent permitted by applicable laws and if we have sufficient information to identify a user, obtain reports from public records of criminal convictions or sex offender registrations of the user. For users outside the United States, we may, to the extent permitted by applicable laws and if we have sufficient information to identify a user, obtain the local version of background or registered sex offender checks in our sole discretion. You agree and authorize us to use your personal information, such as your full name and date of birth, to obtain such reports, including from Ensemble’s vendors.
How the Site, Application and Services Work
The Site, Application and Services can be used to facilitate the creation and Usage of Spaces. You may view Spaces as an unregistered visitor to the Site, Application and Services; however, if you wish to use or create a Space, you must first register to create an Ensemble Account (defined below).
As stated above, Ensemble makes available an online platform or marketplace with related technology for Users and Spaces to connect online and arrange for Usage of Spaces directly with each other. Ensemble is not an owner or operator of properties, including, but not limited to, coworking spaces, executive suites, business centers, workspaces or other organizations or groups, nor is it a provider of properties, including, but not limited to, coworking spaces, executive suites, business centers, workspaces or other organizations or groups and Ensemble does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control properties, including, but not limited to, coworking spaces, executive suites, business centers, workspaces or other organizations or groups. Unless explicitly specified otherwise in the Ensemble platform, Ensemble’s responsibilities are limited to facilitating the availability of the Site, Application and Services.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE SPACES AND USERS CONNECTING AND USING SPACES DIRECTLY WITH EACH OTHER. ENSEMBLE CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY SPACES AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY SPACES. ENSEMBLE IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL AND SPACES. ACCORDINGLY, ANY USAGE WILL BE UNDERTAKEN AT THE USER’S OWN RISK.
In order to access certain features of the Site and Application, and to use a Space or create a Space, you must register to create an account (“Ensemble Account“) and become a User. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites (“SNS“) (including, but not limited to, Facebook; each such account, a “Third-Party Account“), via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your Ensemble Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to Ensemble through the Site, Services or Application; or (ii) allowing Ensemble to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Ensemble and/or grant Ensemble access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Ensemble to pay any fees or making Ensemble subject to any usage limitations imposed by such third-party service providers. By granting Ensemble access to any Third-Party Accounts, you understand that Ensemble will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content“) so that it is available on and through the Site, Services and Application via your Ensemble Account and Ensemble Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be User Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your Ensemble Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or Ensemble’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Ensemble Account and your Third-Party Accounts, at any time, by accessing the “Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. Ensemble makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and Ensemble is not responsible for any SNS Content.
Your Ensemble Account and your Ensemble Account profile page will be created for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Ensemble Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Ensemble reserves the right to suspend or terminate your Ensemble Account and your access to the Site, Application and Services if you create more than one (1) Ensemble Account, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current, incomplete, or otherwise in violation of these Terms of Service.
You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party.
Unless expressly authorized by a specific feature on Ensemble, you are not permitted to share your Ensemble Account with anyone or allow others to access or use your Ensemble Account. Ensemble may enable features, in our discretion, that allow other Users to take certain actions associated with your Ensemble Account, on your behalf with your express authorization. You agree that you will take sole responsibility for any activities or actions under your Ensemble Account, whether or not you have authorized such activities or actions. You will immediately notify Ensemble of any unauthorized use of your Ensemble Account.
As a User, you may create Spaces. To create a Space, you will be asked a variety of questions about the Space to be created, including, but not limited to, the location, capacity, size, features, and availability of the Space and pricing and related rules and financial terms. In order to be featured via the Site, Application and Services, all Spaces must have valid physical addresses. Spaces will be made publicly available via the Site, Application and Services. You understand and agree that the placement or ranking of Spaces in search results may depend on a variety of factors, including User and Space preferences.
Other Users will be able to use your Space via the Site, Application and Services based upon the information provided in your Space and your User and Space requirements.
You acknowledge and agree that you alone are responsible for any and all Spaces and User Content you post. Accordingly, you represent and warrant that any Space you post and the User’s Usage of, a Space (i) will not breach any agreements you have entered into with any third parties or other third party agreements, and (ii) will (a) be in compliance with all applicable laws (such as zoning laws), Tax requirements, Intellectual Property laws, and rules and regulations that may apply to any Space included in a Space you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that Ensemble assumes no responsibility for a Space’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Ensemble reserves the right, at any time and without prior notice, to remove or disable access to any Space for any reason, including Spaces that Ensemble, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
If you are a Space, you understand and agree that Ensemble does not act as an insurer or as your contracting agent. If a User uses your Space, any agreement you enter into with such User is between you and the User and Ensemble is not a party to it.
When you create a Space, you may also choose to include certain requirements which must be met by the Users who are eligible to use your Space, such as requiring Users to have a profile picture or verified phone number, in order to use your Space. Any User wishing to use Spaces with such requirements must meet these requirements.
Ensemble recommends that Spaces obtain appropriate insurance for their Spaces. Please review any insurance policy that you may have for your Space carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of or relating to Users (and the individuals the User invites to the Space, if applicable) while at your Space.
Ensemble does not endorse any User or Space. You understand that any images are intended only to indicate a photographic representation of the Space at the time the photograph was taken. All images are therefore not an endorsement by Ensemble of any User or Space.
Users are required by these Terms to provide accurate information. Although Ensemble may, for transparency or fraud prevention or detection purposes, directly or through third parties, ask you to provide a form of government identification, your date of birth, and other information, or undertake additional checks and processes designed to help verify or check the identities or backgrounds of Users and/or screen User information against third party databases or other sources, we do not make any representations about, confirm, or endorse any User or the User’s purported identity or background.
By registering for an Ensemble Account, you agree that Ensemble may – but is not obligated to – request a consumer report on you from a Consumer Reporting Agency. If we do request a consumer report, we’ll request and use it in compliance with applicable law, including the Fair Credit Reporting Act.
Any references in the Site, Application or Services to a User being “verified” or “connected” (or similar language) only indicate that the User has completed a relevant verification or identification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Ensemble about any User, including of the User’s identity and whether the User is trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Site, Application and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to use a Space or to accept a User into your Space, or to have any other interaction with any other User.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular Users or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Ensemble with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Users on the Site and Services regarding any Usage by you. This limitation shall not apply to any claim by a Space against Ensemble regarding the remittance of payments received from a User by Ensemble on behalf of a Space, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
- Key definitions“Usage Fees” means the amounts that are due and payable by a User in exchange for that User’s Usage of a Space. The Space alone, and not Ensemble, is responsible for the Usage Fees for his or her Space. The Space may in his or her sole discretion decide to include in these amounts Taxes that the Space determines that he or she has to collect.
“User Fees” means the fee that a Space charges a User in addition to the Usage Fees. The User Fees will be displayed to the User when checking out on the payment summary screen. User Fees are calculated as a percentage of the applicable Usage Fees.
“Space Fees” means the fee that Ensemble charges a Space for the use of the Services, which is calculated as a percentage of the applicable Usage Fees.
“Payment Method” means a payment method that you have added to your Ensemble Account, such as a credit card, debit card or bank account.
“Service Fees” means collectively the User Fees and the Space Fees.
“Total Fees” means collectively the Usage Fees and the User Fees plus any Taxes.
Ensemble will collect the Total Fees from each User either at the time of Checkout or upon the User’s Bill-On Date. Ensemble will initiate payment of the Usage Fees (less Ensemble’s Space Fees) to the Space in most cases daily on a two day rolling basis, unless the Space and Ensemble agree to a different time or trigger for payment. The time it takes for the Space to receive payouts once released by Ensemble may depend upon the Payout Method chosen by the Space. Some Payout Methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Space, including by deducting their charges from the payout amount.
If you owe or agree to pay any amount via Ensemble (whether as a result of your actions as a User or otherwise), then Ensemble may (but is not obliged to) withhold the amount owing to Ensemble from any payout amounts due to you as a Space, and use the withheld amount to setoff the amount owed by you to Ensemble. If Ensemble does so, then your obligation to pay Ensemble will be extinguished to the extent of the amount withheld by Ensemble, and Ensemble will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld. In addition to the amount due, if your account is delinquent or you otherwise have chargebacks on your account, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees, or other third party charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to Ensemble by you. Such communication may be made by Ensemble or by anyone on their behalf, including but not limited to a third party collection agent.
- Bookings and Financial Terms for UsersYou acknowledge and agree that, notwithstanding the fact that Ensemble is not a party to the agreement between you and the Space, Ensemble acts as the Space’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Space. Upon your payment of the Total Fees to Ensemble, your payment obligation to the Space for the Usage Fees is extinguished, and Ensemble is responsible for remitting the Usage Fees (less the Space Fees and any Taxes in respect of the Space Fees, such as VAT in Europe), in the manner described in these Payments Terms.
You as a User agree that Ensemble may charge your Payment Method the Total Fees for any Usage in connection with your Ensemble Account. As a general rule, Ensemble will collect the Total Fees due for all Event and Booking Reservations at the time of Reservation. In instances in which Ensemble is unable to collect Total Fees in the ordinary course, Ensemble may elect to collect Total Fees at a later point in time.
In connection with your Event or Booking Reservation, you will be asked to provide customary billing information such as name, billing address and Payment Method information either to Ensemble or its third-party payment processor(s). You agree to pay Ensemble for any Event or Booking Reservations made in connection with your Ensemble Account in accordance with these Payments Terms by one of the methods supported by the Site or Application (e.g. by PayPal, credit card or debit card). You hereby authorize the collection of such amounts by charging the Payment Method provided as part of the Booking or Event Reservation, either directly by Ensemble or indirectly, via a third-party online payment processor or by one of the payment methods described on the Site or Application.
Please note that Ensemble cannot control any fees that may be charged to a User by his or her third-party payment service provider related to Ensemble’ collection of the Total Fees, and Ensemble disclaims all liability in this regard. Whatever Payment Method you use may be subject to additional terms and conditions imposed by the applicable third-party payment service provider; please review such terms and conditions before using your Payment Method.
- Service Fees and Other FeesEnsemble collects the Service Fees charged pursuant to the Ensemble Terms. Where applicable, Ensemble may also charge Taxes (such as VAT in Europe) in respect of the Space Fees and User Fees. Ensemble deducts the Space Fees from the Usage Fees before remitting the balance to the Space as described in these Payments Terms. User Fees are, as noted above, included in the Total Fees.
Balances will be remitted by Ensemble to Spaces via the Payout Method selected by the Space in the Space’s currency of choice, depending upon the selections the Space makes via the Site, Application and Services. Amounts may be rounded up or down as described the “Rounding Off” portion of this Section 9.
Please note that Ensemble may impose or deduct currency conversion costs on or from any payments or payouts by Ensemble in currencies other than U.S. dollars. More information on any such costs or deductions is available via the Site and Application, and in Section 10, “Currency Conversion”, below. More information on Services Fees can be found at www.ensembleapp.co/. Except as otherwise provided herein, Service Fees are non-refundable.
- General Booking and Financial TermsCancellations and Refunds
If, as a User, you cancel your Event or Booking Reservation refund any nominal amounts charged to your Payment Method in connection with the Event or Booking Reservation within a commercially reasonable time. If, as a User, you wish to cancel an Event or Booking Reservation made via the Site, Application and Services, Ensemble will refund the Usage Fees and any other amounts charged to you only as permitted under the Ensemble Terms, including the terms of the applicable cancellation policy.
If a Space cancels an Event or Booking Reservation made via the Site, Application or Services, Ensemble will refund the Total Fees for such Event or Booking Reservation to the applicable User within a commercially reasonable time of the cancellation.
If, as a Space, you cancel an Event or Booking Reservation, you agree that Ensemble may collect any cancellation fees imposed pursuant to the Ensemble Terms. Ensemble will treat your cancellation as a payment authorization, and Ensemble may withhold any cancellation fees from your future payouts or charged to any Payment Method on file in your Ensemble Account.
If Ensemble decides for any reason that it is necessary or desirable to cancel an Event or Booking Reservation made via the Site, Application and Services pursuant to the Ensemble Terms you agree that Ensemble and the relevant User or Space will not have any liability for such cancellations or refunds.
If, as a Space, your User cancels an Event or Booking Reservation or Ensemble decides that it is necessary to cancel an Event or Booking Reservation, and Ensemble issues a refund to the User in accordance with the Ensemble Terms or other applicable cancellation policies, you agree that in the event you have already been paid, Ensemble will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future Usage Fees due to you.
For certain Usage, Users may be required to make recurring, incremental payments toward the Total Fees owed for Usage in the applicable Space (collectively, “Recurring Payments”). More information on Recurring Payments (including the amount and the frequency of the payment) will be made available via the Site, Application and Services, if applicable. If Recurring Payments apply to Usage, then the User authorizes Ensemble, on behalf of the Space, to collect the Total Fees and the Space agrees that Ensemble will initiate payouts to the Space, in the increments and at the frequency associated with the applicable Recurring Payments, each as identified on the Site, Application and Services. You may stop payment of a Recurring Payment by notifying Ensemble orally or in writing at least three (3) business days before the scheduled date of the payment. Ensemble may require that you give written confirmation of a stop-payment order within fourteen (14) days of an oral notification. If you fail to provide written confirmation within fourteen (14) days as requested, Ensemble is not obligated to honor your request to stop any future Recurring Payments. If you have any questions regarding your Recurring Payments, please contact Ensemble.
Ensemble may, in its sole discretion, round up or round down amounts that are payable from or to Users or Spaces to the nearest whole functional base unit in which the currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, Ensemble will round up an amount of $101.50 to $102.00, and $101.49 to $101.00.
Some currencies are denominated in large numbers. In those cases, Ensemble may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Ensemble to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method or Payment Method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
Booking and Event Modifications
If, as a User, you owe additional amounts to Ensemble due to a Booking or Event Modification, you agree that Ensemble may collect such amounts by charging the Payment Method used to make your Booking or Event. If, as a Space, you owe Ensemble any amounts due to a Booking or Event Modification, you agree that Ensemble may collect those amounts pursuant to the “Financial Terms for Spaces regarding Bookings” portion of this Section 9 and as otherwise permitted under these Payments Terms.
Ensemble’s online platform facilitates payments between Users and Spaces who may pay in a currency different from their destination currency, which may require currency conversions to accommodate these differing currency preferences. Although the Ensemble platform allows users to view the price of Spaces in a number of currencies, the currencies available for users to make and receive payments may be limited, and may not include the default currency in any given geographic location.
Details regarding currency conversion, including any associated fees, are detailed in the Payments Terms
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Collective Content. In connection with your use of the Site, Application, Services and Collective Content, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
- use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Collective Content;
- use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Ensemble endorsement, partnership or otherwise misleads others as to your affiliation with Ensemble;
- dilute, tarnish or otherwise harm the Ensemble brand in any way,
- including through unauthorized use of Collective Content,
- registering and/or using Ensemble or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Ensemble domains, trademarks, taglines, promotional campaigns or Collective Content
- copy, store or otherwise access or use any information contained on the Site, Application, Services or Collective Content for purposes not expressly permitted by these Terms;
- infringe the rights of Ensemble or the rights of any other person or entity, including without limitation, their intellectual property, privacy, publicity or contractual right
- interfere with or damage our Site, Application or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use our Site, Application, Services or Collective Content in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to lodging in a private residence;
- “stalk” or harass any other user of our Site, Application, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as an Ensemble User or Space;
- offer, as a Space, any Space that you do not yourself own or have permission to Book as a residential or other property (without limiting the foregoing, you will not list Spaces as a Space if you are serving in the capacity of an agent for a third party);
- offer, as a Space, any Space that may not be Booked pursuant to the terms and conditions of an agreement with a third party;
- register for more than one Ensemble Account or register for an Ensemble Account on behalf of an individual other than yourself;
- unless Ensemble explicitly permits otherwise, request or book a stay at any Space if you will not actually be staying at the Space yourself;
- contact another User for any purpose other than asking a question related to a Booking, Space or the User’s use of the Site, Application and Services;
- recruit or otherwise solicit any Space or other User to join third-party services or websites that are competitive to Ensemble, without Ensemble’s prior written approval;
- recruit or otherwise solicit any User to join third-party services, applications or websites, without our prior written approval;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information from or otherwise interact with the Site, Application, Services or Collective Content;
- use the Site, Application, Services or Collective Content to find a Space or User and then complete a Booking of a Space independent of the Site, Application or Services, in order to circumvent the obligation to pay any Service Fees related to Ensemble’s provision of the Services or for any other reasons;
- as a Space, submit any false or misleading information, including price information, or submit any price that you do not intend to honor;
- engage in disruptive, circumventive, abusive or harassing behavior in any area or aspect of our Platform, Application, or Services;
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- use, display, mirror or frame the Site, Application, Services or Collective Content, or any individual element within the Site, Application, Services or Collective Content, Ensemble’s name, any Ensemble trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, Application or Services, without Ensemble’s express written consent;
- access, tamper with, or use non-public areas of the Site, Application or Services, Ensemble’s computer systems, or the technical delivery systems of Ensemble’s providers;
- attempt to probe, scan, or test the vulnerability of any Ensemble system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented byEnsemble or any of Ensemble’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content;
- advocate, encourage, or assist any third party in doing any of the foregoing; or
- accept or make a payment for Usage Fees outside Ensemble Payments. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Ensemble harmless from any liability for such payment.
Ensemble has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. In addition, and as set in these Terms, Ensemble may take a range of actions against you, including but not limited to removing or disabling access to any or all of your User Content or deactivating or canceling your Space(s) or Ensemble Account, for a violation of this Section or these Terms.
Ensemble may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Ensemble or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Ensemble, its users, or members of the public. You acknowledge that Ensemble has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review, remove, disable access to or edit any User Content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Ensemble reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Ensemble, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
If you stay with or host anyone who you feel is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Ensemble by contacting us with your police station and report number; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
Intellectual Property Ownership and Rights Notices
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of Ensemble and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content. All trademarks, service marks, logos, trade names, and any other proprietary designations of Ensemble used on or in connection with the Site, Application, Services, and Ensemble Content are trademarks or registered trademarks of Ensemble in the US and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Site, Application, Services, and Ensemble Content are used for identification purposes only and may be the property of their respective owners. As a Space or User, you understand and agree that you are bound by the additional Terms, Guidelines and Policies that apply to your use of the Site, Application, Services and Collective Content.
Our Site, Application and Services have different products, features and offerings, so sometimes additional terms or product requirements may apply to your use of those products, features or offerings. For example, additional terms apply if you refer new users to Ensemble (“Referral Program“). If additional terms are available for the relevant product or Services you use, those additional terms become part of these Terms.
Subject to your compliance with these Terms, Ensemble grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on each mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any Apple App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Ensemble reserves all rights in the Application not expressly granted to you by these Terms.
Ensemble Content and User Content License
Subject to your compliance with these Terms, Ensemble grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Ensemble Content solely for your personal and non-commercial purposes and (ii) access and view any User Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Ensemble or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Site, Application, Services, or through Ensemble promotional campaigns, you hereby grant to Ensemble a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, translate, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote or market the Site, Application and Services. Ensemble does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site, Application, Services or through Ensemble promotional campaigns. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site, Application, Services or through Ensemble promotional campaigns or you have all rights, licenses, consents and releases that are necessary to grant to Ensemble the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Ensemble’s use of the User Content (or any portion thereof) on, through or by means of the Site, Application, the Services or Ensemble promotional campaigns will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Ensemble is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Ensemble of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Ensemble respects copyright law and expects its users to do the same. It is Ensemble’s policy to terminate in appropriate circumstances the Ensemble Accounts of Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
Term and Termination, Suspension and Other Measures
These Terms shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Ensemble terminate these Terms as described below.
Termination for convenience
You may terminate these Terms at any time via written notice by sending us an email. If you cancel your Ensemble Account as a Space, any Event or Booking reservations will be automatically cancelled and your Users will receive a full refund. If you cancel your Ensemble Account as a User, any Event or Booking Reservation will be automatically cancelled and any refund will depend upon the terms of the applicable cancellation policy.
Without limiting our rights specified below, Ensemble may terminate these Terms for convenience at any time by giving you 30 days’ notice via email to your registered email address.
Termination for breach, suspension and other measures
Ensemble may immediately, without notice terminate these Terms if (i) you have materially breached these Terms or our Policies, including but not limited to any breach of your warranties outlined in these Terms or breach of the “User Conduct” provisions in these Terms, (ii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Ensemble Account registration, or Space creation process or thereafter, (iii) you have violated applicable laws, regulations or third party rights, or (iv) Ensemble believes in good faith that such action is reasonably necessary to protect the safety or property of other Users, Ensemble or third parties, for fraud prevention, risk assessment, security or investigation purposes.
In addition Ensemble may deactivate or delay Spaces, reviews, or other User Content, limit your use of or access to your Ensemble Account and the Site, Application or Services, temporarily or permanently revoke any special status associated with your Ensemble Account, or temporarily or permanently suspend your Ensemble Account if (i) you have breached these Terms or our Policies, including material and non-material breaches and receiving poor ratings from Spaces or Users, or (ii) Ensemble believes in good faith that such action is reasonably necessary to protect the safety or property of Users, Ensemble or third parties, for fraud prevention, risk assessment, security or investigation purposes.
If we take any of the measures described in this section, we may (i) communicate to your Users or Spaces that an Event or Booking Reservation has been cancelled, (ii) refund your Users in full for any and all confirmed Event or Booking Reservations, irrespective of preexisting cancellation policies, (iii) support your Users, on an exceptional basis, in finding potential alternative Spaces, and (iv) you will not be entitled to any compensation for Event or Booking Reservations that were cancelled.
In case of non-material breaches and where appropriate, you will be given notice of any measure by Ensemble and an opportunity to resolve the issue to Ensemble’s reasonable satisfaction.
If you or we terminate this Agreement, we do not have an obligation to delete or return to you any of your User Content, including but not limited to any reviews or Feedback. When this Agreement has been terminated, you are not entitled to a restoration of your Ensemble Account or any of your User Content. If your access to or use of the Site, Application and Services has been limited or your Ensemble Account has been suspended or this Agreement has been terminated by us, you may not register a new Ensemble Account or attempt to access and use the Site, Application and Services through other Ensemble Accounts.
If you or we terminate this Agreement, the clauses of these Terms that reasonably should survive termination of the Agreement will remain in effect.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT OR PARTICIPATE IN THE REFERRAL PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ENSEMBLE DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, USERS AND SPACES. BUT MAY CONDUCT SUCH BACKGROUND OR REGISTERED SEX OFFENDER CHECKS, IN OUR SOLE DISCRETION, TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND IF WE HAVE SUFFICIENT INFORMATION TO IDENTIFY A MEMBER. IF WE CHOOSE TO CONDUCT SUCH CHECKS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT SUCH CHECKS WILL IDENTIFY PRIOR MISCONDUCT BY A USER OR GUARANTEE THAT A USER WILL NOT ENGAGE IN MISCONDUCT IN THE FUTURE.
THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ENSEMBLE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ENSEMBLE MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY SPACES, OR THE REFERRAL PROGRAM WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ENSEMBLE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SPACES, USERS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, SERVICES OR REFERRAL PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ENSEMBLE OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY SPACES OR USERS. YOU UNDERSTAND THAT ENSEMBLE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR VISIT ANY SPACES. ENSEMBLE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, USERS AND SPACES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY ENSEMBLE. ENSEMBLE EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTY.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR SPACE OR USAGE OF ANY SPACES VIA THE SITE, APPLICATION AND SERVICES, YOUR PARTICIPATION IN THE REFERRAL PROGRAM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF ENSEMBLE WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER ENSEMBLE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT OR THE REFERRAL PROGRAM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR FROM YOUR SPACE OR USAGE OF ANY SPACE VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ENSEMBLE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE SPACES PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE ENSEMBLE SPACE GUARANTEE, IN NO EVENT WILL ENSEMBLE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR SPACE OR USAGE OF ANY SPACE VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT, OR EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A USER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A SPACE, THE AMOUNTS PAID BY ENSEMBLE TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ENSEMBLE AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Ensemble and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your User Content; (c) your (i) interaction with any User, (ii) Reservation of a Booking or Event at a Space, or (iii) creation of a Space; (d) the use of a Space by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of use of a Space; or (e) your participation in the Referral Program.
Export Control and Restricted Countries
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Site, Application and Services, you represent and warrant that (i) neither you nor your listed Space is 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. You also will not use the Site, Application and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Ensemble does not permit Spaces associated with certain countries due to U.S. embargo restrictions. In addition to complying with the above, you must also comply with any relevant export control laws in your local jurisdiction.
Accessing and Downloading the Application from iTunes
The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application“):
You acknowledge and agree that (i) these Terms are concluded between you and Ensemble only, and not Apple, and (ii) Ensemble, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Ensemble and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Ensemble.
You and Ensemble acknowledge that, as between Ensemble and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Ensemble acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Ensemble and Apple, 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 and Ensemble acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Except as they may be supplemented by a document referenced and incorporated herein or by additional Ensemble policies, guidelines, standards, or terms for a specific product, feature, service or offering, these Terms constitute the entire and exclusive understanding and agreement between Ensemble and you regarding the Site, Application, Services, Collective Content (excluding Payment Services), and any Usage or Creation of Spaces made via the Site, Application and Services (excluding Payment Services), and these Terms supersede and replace any and all prior oral or written understandings or agreements between Ensemble and you regarding Usage or creation of Spaces, the Site, Application, Services, and Collective Content (excluding Payment Services).
You may not assign or transfer these Terms, by operation of law or otherwise, without Ensemble’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Ensemble may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Ensemble (i) via a Communication (in each case to the address or phone number that you provide) or (ii) by posting to the Site or via the Application. For notices made via a Communication, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms and your use of the Services will be interpreted in accordance with the laws of the State of Colorado and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Denver County, Denver, Colorado or a United States District Court, Northern District of Colorado located in Denver, Colorado for any actions for which the parties retain 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, as set forth in the Dispute Resolution provision below.
If you reside in the United States, you and Ensemble agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site, Application or Collective Content (collectively, “Disputes“) will be settled by binding arbitration, except that each party retains 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. You acknowledge and agree that you and Ensemble are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Ensemble otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_medor by calling the AAA at 1–800–778–7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration 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 AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Colorado 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.
Arbitration Location and Procedure. Unless you and Ensemble otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Ensemble submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, 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. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Ensemble will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Ensemble will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Ensemble changes this “Dispute Resolution” section after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Ensemble’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Ensemble in accordance with the provisions of this “Dispute Resolution” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Ensemble to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Ensemble. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Third party beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
If you have any questions about these Terms or any App Store Sourced Application, please contact firstname.lastname@example.org.