Terms of Service
Last Updated: April 1, 2019
Experiences presented on vistana.placeplass.com (the “Site”) are provided by third parties and aggregated through the Service provided by PlacePass under an agreement with Marriott Resorts, Travel Company, Inc. (“MRTC”). Your use of the Service is subject to the PlacePass Terms of Service set forth below.
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Welcome, and thank you for your interest in ETMA, Inc. d/b/a PlacePass (“PlacePass,” “we,” or “us”) and our activity search and price comparison service, our website at www.placepass.com, and the related websites (including the Site), widgets, and other services provided or otherwise made available by us (collectively, the “Service”). These Terms of Service and End User License Agreement are a legally binding contract between you and PlacePass regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 16, YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND PLACEPASS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU 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 AND NOT A JUDGE OR JURY.
1. PlacePass Service Overview.
The Service enables users to discover and purchase transportation services, tours, excursions, activities, concerts, events, and the like (“Experiences”) that are owned, controlled or otherwise made available by third parties (“Experience Providers”) either directly (e.g., by a tour guide) or indirectly (e.g., by an online travel agency). Experience Providers, and not PlacePass or MRTC, provide the Experiences that appear on the Service.
2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or PlacePass, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. PlacePass may provide you the ability to register for an account on the Service. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
4. Booking Terms.
4.1 Experience Provider Bookings. Certain Experiences displayed on the Service may require you to follow a link to an Experience Provider’s website in order to complete your booking and remit payment. In that case, your payment and booking of the Experience is subject to the terms and conditions of the applicable Experience Provider.
4.2 Fees for Experiences. PlacePass may make certain Experiences available for purchase through the Service. If you purchase an Experience through the Service, you may be required to pay all amounts payable in connection with the Experience to PlacePass, however your booking will remain subject to the Experience Provider’s terms and conditions in addition to these Terms. Before you pay any fees to PlacePass, you will have an opportunity to review and accept the fees that you will be charged. All fees payable to PlacePass will be in U.S. Dollars and are non-refundable, except as set forth in Section 4.4.
4.3 Authorization. If payment for the Experience is made through PlacePass, you authorize PlacePass to charge all sums for the orders that you make as described in these Terms or published by PlacePass, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, PlacePass may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.4 Special Booking Terms. From time to time and in its sole discretion, PlacePass may offer special terms applicable to individual bookings. Additionally, you may be able to make modifications to bookings that you make with respect to certain Experiences purchased through the Service.
4.5 Earning Marriott Bonvoy Points.
a. A Member is eligible to receive Marriott Bonvoy points (“Points”) for all qualifying purchases made through vistana.placepass.com. To ensure Points are automatically posted to the correct Marriott Bonvoy Member (“Member”) account, the Member’s account number must be entered correctly at time of check-out on vistana.placepass.com. The Member must already be a Member or sign-up for Marriott Bonvoy (“Rewards Program”) prior to purchase in order to earn Points on purchases through vistana.placepass.com.
b. Charges that do not qualify for Points include taxes and fees applied to the products purchased through vistana.placepass.com, the purchase of gift cards, purchases made on partner sites (e.g., Stubhub.com), or as set forth below.
c. Elite night credit may not be earned on purchases made through vistana.placepass.com.
d. Miles cannot be earned for purchases made through vistana.placepass.com.
e. Cancellations and no-shows are not eligible to earn Points, unless purchased products have been paid in full. Points will not be issued on refunded purchases.
f. Points will be awarded based on a value of 5 Points earned per $1 USD spent, or as set forth below.
g. Points earned for Hertz Car Rental purchases through vistana.placepass.com can only be awarded in the form of Marriott Bonvoy Points and are subject to any applicable Hertz earning promotions displayed at time of check-out of a Hertz Car Rental. The Earning potential of Hertz Car Rental will vary by promotion and is not valued at 5 Points earned per $1 USD spent.
h. If a Member is purchasing on behalf of additional people, at least one of the purchases must be reserved for the Member and the Member must pay for all purchases in order to earn Points. Only one Member can earn Points on a single purchase order. Points for a product booked for two Rewards Programs Members will only be awarded to the Rewards Programs Member number entered at time of check-out on vistana.placepass.com.
i. Points will only be awarded for purchases made through vistana.placepass.com and will not be given for tours, activities, and other ancillary travel products booked with providers that may also be bookable through other third party websites.
j. Products booked via vistana.placepass.com by Marriott Vacations Worldwide Corporation employees are not eligible to earn Points or elite night credits.
k. All Rewards Program terms and conditions apply to purchases made on vistana.placepass.com.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, PlacePass grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, or publicly display the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service or participating in any Experience, you may not use the Service or book that Experience.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant PlacePass an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by PlacePass. The visual interfaces, graphics, trademarks, logos, design, compilation, information, data, computer code (including source code or object code), products, services, and all other elements of the Service, including Third Party Content (as defined below) (collectively, “Materials”) made available through the Service are protected by intellectual property and other laws. All Materials included in the Service are the property of PlacePass or its third party licensors and, except as expressly authorized by PlacePass or the applicable third party licensor, you may not use the Materials for any purpose. PlacePass and its third party licensors, as applicable, reserve all rights to the Materials not granted expressly in these Terms.
7. Third Party Terms
7.1 Linked Websites and Third Party Content. The Service displays content made available by, or obtained from, Experience Providers and other third parties, which content may include prices, images or descriptions of Experiences (the “Third Party Content”). The Service may also contain links to third party websites, including links directing you to visit a third party website in order to complete your booking of an Experience. PlacePass does not control, and is not responsible for any content on, such third party websites.
7.2 Third Party Terms. Each Experience is governed by the terms and conditions of the applicable Experience Provider and other third parties. You agree to comply with all such terms and conditions that apply to your booking of, and participation in, an Experience, including terms of service, privacy policies, cancellation terms, payment terms, and liability waivers.
8. User Content
8.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including comments and reviews (“User Content”) for publication on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Limited License Grant to PlacePass. By submitting, posting, publishing, or sharing User Content, you grant PlacePass a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3 Limited License Grant to Other Users. By submitting, posting, publishing, or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4 User Content Representations and Warranties. PlacePass disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of submitting, posting, publishing, or sharing User Content. By submitting, posting, publishing, or sharing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize PlacePass and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by PlacePass, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause PlacePass to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. PlacePass may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against PlacePass with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, PlacePass does not permit copyright-infringing activities on the Service.
9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
9.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
9.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
9.3 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
9.4 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service
9.5 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing a Service account without permission, or falsifying your age or date of birth;
9.6 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
9.7 attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Digital Millennium Copyright Act
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
77 Summer Street, 10th Floor
Boston, MA 02110
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
10.2 Repeat Infringers. PlacePass will promptly terminate the ability of users that are determined by PlacePass to be repeat infringers from supplying content to the Service.
11. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. If we make a change to these Terms, we may notify you by sending you an email to the last email address you provided to us (if any) or by posting notice of the changes on the Service. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your assent to the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Term, Termination and Modification of the Service
12.1 Term. These Terms shall remain in effect until terminated pursuant to Section 12.2.
12.2 Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, PlacePass may, in its sole discretion, terminate these Terms or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
12.3 Effect of Termination. Upon termination of these Terms: (a) all licenses granted to you under these Terms will terminate and you must immediately cease all use of the Service; and (b) all payment obligations accrued prior to termination and Sections 5.3, 6, 7, 8.2, 12.3, 13, 14, 15, 16, , and 17 will survive.
12.4 Modification of the Service. PlacePass reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. PlacePass will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you agree to indemnify, defend, and hold harmless PlacePass, MRTC, and each of its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Indemnified Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, including any representation or warranty, any agreement referenced in these Terms (including an Experience Provider’s terms and conditions), or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including an Experience Provider. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PLACEPASS AND MRTC DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE EXPERIENCES, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PLACEPASS AND MRTC DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PLACEPASS AND MRTC DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NEITHER PLACEPASS NOR MRTC IS RESPONSIBLE FOR THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE MATERIALS DISPLAYED ON THE SERVICE (INCLUDING ANY THIRD PARTY CONTENT). PLACEPASS AND MRTC DO NOT PROVIDE, OWN, CONTROL OR ENDORSE ANY EXPERIENCES. IT IS THE SOLE RESPONSIBILITY OF THE EXPERIENCE PROVIDER OR ITS PARTNERS, AFFILIATES, OR AGENTS TO PROVIDE THE EXPERIENCES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR INDEMNIFIED ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE INDEMNIFIED ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. NEITHER PLACEPASS NOR MRTC IS RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALINGS WITH ANY EXPERIENCE PROVIDER.
NOTWITHSTANDING the FOREGOING, NEITHER PLACEPASS NOR MRTC DISCLAIMS ANY WARRANTY OR OTHER RIGHT THAT PLACEPASS OR MRTC IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE INDEMNIFIED ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THE EXPERIENCES, YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY INDEMNIFIED ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 16.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE INDEMNIFIED ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PLACEPASS UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
ANY DISPUTE YOU HAVE WITH AN EXPERIENCE PROVIDER IS DIRECTLY BETWEEN YOU AND SUCH EXPERIENCE PROVIDER, AND YOU IRREVOCABLY RELEASE THE INDEMNIFIED ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and PlacePass in the most expedient and cost effective manner, and except as described in Section 16.2, you and PlacePass agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PLACEPASS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Arbitrator. Any arbitration between you and PlacePass will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting PlacePass. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). PlacePass’s address for Notice is: ETMA, Inc., 77 Summer Street, 10th Floor, Boston MA 02110. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or PlacePass may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or PlacePass must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by PlacePass in settlement of the dispute prior to the award, PlacePass will pay to you the higher of (i) the amount awarded by the arbitrator; or (ii) $10,000.
16.5 Fees. If you commence arbitration in accordance with these Terms, PlacePass will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Cambridge County, Massachusetts, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse PlacePass for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.6 No Class Actions. YOU AND PLACEPASS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and PlacePass agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.7 Modifications to this Arbitration Provision. If PlacePass makes any future change to this arbitration provision, other than a change to PlacePass’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to PlacePass’s address for Notice of Arbitration, in which case your account with PlacePass will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17.1 will govern any action arising out of or related to these Terms.
17.1 Governing Law. These Terms are governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles. You and PlacePass submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Middlesex County, Massachusetts for resolution of any lawsuit or court proceeding permitted under these Terms.
17.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service.
17.5 Contact Information. The Service is offered by ETMA, Inc., located at 77 Summer Street, 10th Floor, Boston MA 02110. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org. You can access a copy of these Terms by clicking here: vistana.placepass.com/terms.
17.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.