Square Footage, Inc. d/b/a Playhouse, a Delaware corporation (hereinafter, “Playhouse,” “we,” “us,” and/or “our”) owns and operates the Playhouse website located at https://www.playhouse.so (the “Site”) and the Playhouse proprietary mobile applications (the “Playhouse Apps”), which enables users to view and browse real estate listing (the “Service”).
When we refer to the “Playhouse Services” throughout these Terms of Service (hereinafter, these “Terms”), we mean the Site, Playhouse Apps, Service, and any other products, websites, services, applications and/or other products that include a link and/or reference to these Terms, and any related services and/or new features and/or functionality provided by us through or in connection with any of the foregoing.
ACCEPTANCE OF THESE TERMS: IMPORTANT -- PLEASE READ THESE TERMS CAREFULLY. These Terms set forth the legally binding terms and conditions between you (“you” and/or “your”) and Playhouse governing your access and use of the Playhouse Services. By accessing or using the Playhouse Services in any manner, including, but not limited to, visiting or browsing the Site and/or downloading any Playhouse App, you expressly: (1) acknowledge that you have read, understand, and agree to be bound by all the terms and conditions set forth in these Terms, (2) affirm, represent and warrant that you meet the eligibility requirements set forth in Section 1 of these Terms and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and (3) that you are entering into these Terms with Square Footage, Inc. d/b/a Playhouse, a Delaware corporation.
NOTICE OF AGREEMENT TO ARBITRATE AND WAIVER OF CLASS ACTIONS: THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST PLAYHOUSE TO BINDING AND FINAL ARBITRATION AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AS SET FORTH SECTION 14.
NOTICE OF WARRANTY & LIABILITY DISCLAIMERS: PLEASE BE ADVISED THAT PLAYHOUSE DOES NOT PROVIDE ANY WARRANTIES TO YOU AND THESE TERMS LIMIT OUR LIABILITY TO YOU. PLEASE SEE SECTION 11 FOR FURTHER INFORMATION.
YOU MAY NOT ACCESS OR USE THE PLAYHOUSE SERVICES (OR ANY PART THEREOF) IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH BELOW.
You must be at least 18 years old or the applicable age of majority in your jurisdiction to create an account for the Playhouse Services (an “Account”) or otherwise use the Playhouse Services. If you are under the eligible age set forth above (a “minor”) you may use the Playhouse Services only through a parent or legal guardian’s Account (if applicable) and under the direct supervision of the parent or legal guardian.
If you are a minor and wish to use the Playhouse Services, you must have a parent or legal guardian’s permission to use the Playhouse Services as well as have them read and agree to these Terms on your behalf.
If you are the parent or legal guardian of a minor, by granting such minor permission to use the Playhouse Services, you agree and understand that you are responsible for monitoring and supervising such minor’s usage and you represent and warranty that you are directly supervising the minor’s use of the Playhouse Services.
If you believe your minor is using your Account and/or the Playhouse and does not have your permission, please contact us immediately so that we can disable access.
2. ADDITIONAL TERMS; MODIFICATIONS TO THESE TERMS
2.1 Additional Terms
When using particular services or materials through or in connection with the Playhouse Services, you will be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in these Terms, including, without limitation, our Privacy Notice, Text Service Addendum, Content Standards and Community Guidelines, and Infringement Policy (all of the foregoing, individually and collectively, the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into these Terms. In the event the provisions of any Additional Terms conflict with these Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
2.2 Modifications to these Terms
Playhouse reserves the right to update or modify these Terms at any time. Except as otherwise stated in this Section 2.2, all updates and modifications to these documents will be effective from the day they are posted online at https://www.playhouse.so/legal/terms. If we make any material changes to these Terms, we will post a notice of the changes on the Site and/or through the user-interface of the Playhouse Apps, and if we have an email address on file for you, we may notify you of these changes by sending a notification to the applicable email address. It is your responsibility to regularly visit and review these Terms. If you do not agree to any updates or modifications to these Terms, simply do not use or access the Playhouse Services and terminate your Account (if applicable). Your continued use of the Playhouse Services (or any part thereof) after we have posted the revised Terms, or, in the event of material changes, ten (10) days following the date Playhouse first notified you of such material changes either through the Site, the user-interface of the Playhouse App, and/or via email, as applicable, signifies to us that you acknowledge and agree to be bound by the revised Terms.
3. TERM; TERMINATION
These Terms will remain in full force and effect as long as you continue to access or use the Playhouse Services (or any part thereof), or until terminated in accordance with the provisions of these Terms.
You may terminate at any time by terminating your Account (if applicable) and by permanently uninstalling and deleting all Playhouse Apps from your mobile and/or tablet devices and ceasing all use of the Playhouse Services. At any time, Playhouse may (a) suspend or terminate your rights to access or use the Playhouse Services (or any part thereof), or (b) terminate these Terms with respect to you if Playhouse, in good faith, believes that you have used the Playhouse Services (or any part thereof) in violation of these Terms, including any including, without limitation any Additional Terms and/or any other incorporated guidelines, terms or rules set forth in these Terms and/or any Additional Terms.
3.3 Effect of Termination
Upon termination of these Terms, your Account and your right to use the Playhouse Services will automatically terminate, and you agree to cease all use of the Playhouse Services and permanently delete the Playhouse App from all your mobile devices. The rights and obligations applicable to you and/or Playhouse under the following Sections shall survive any termination of these Terms: 2, 3.3, 4, 5.1, 5.2, 5.4, 5.5, 5.7, 5.8, 5.9, and 6 through 17.
If you provide us any personal information in connection with your access and/or use of the Playhouse Services, you acknowledge, agree and consent to the processing and use of such personal information by Playhouse in accordance with these Terms and as set forth in our Privacy Notice.
5. ACCESSING AND USING
To access and use certain features of the Playhouse Services you may need to create and register an Account. In registering an Account, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create an Account using a false identity or information, and (b) create an Account or use the Playhouse Services if you have been previously removed or banned by us from use of the Playhouse Services, or any part thereof. Playhouse reserves the right to limit the number of Accounts that can be created from any one computer or mobile device and the number of computer or mobile devices that can access an individual Account.
5.2 Account Security
You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your Account. You are solely responsible for any activity originating from your Account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your Account.
5.3 Text Service
Playhouse offers a mobile messaging service that delivers OTT/SMS/MMS text message notifications sent by us (or others on our behalf) to participants who have opted-in to the service regarding price drops for saved listings, new listings we may think are of interest to the participant, and/or other marketing communications (the “Text Service”). The Text Service is governed by these Terms as well as the Text Service Addendum (the terms of which shall be deemed incorporated into and made a part of these Terms by this reference as if set forth in full). For the avoidance of doubt, the Text Service is included in the term “Playhouse Services” as used throughout these Terms and any other applicable Additional Terms.
5.4 Mobile Devices
You acknowledge and agree that in order to use the Playhouse App, and the Text Service you must have a compatible mobile and/or tablet device. You are solely responsible for determining whether or not your mobile and/or tablet device is or is not compatible with the Playhouse App and/or Text Service. Playhouse makes no representations or warranties whatsoever regarding the Playhouse App and/or Text Service compatibility with any computer, mobile and/or tablet device. You further acknowledge and agree that you are solely responsible for any fees or charges incurred from your use of the Playhouse App and/or Text Service through your mobile and/or tablet devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.
5.5 Electronic Communications
By using the Playhouse Services, you consent to receiving electronic communications from Playhouse, including, but not limited to, communications sent via email and/or text message or notifications posted on our Site and/or through the user-interface of the Playhouse Apps. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to your use of the Playhouse Services. These electronic communications are part of your relationship with Playhouse and you receive them as part of your purchase. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
5.6 Right to Access to the Playhouse Services
Subject to your compliance with these Terms, Playhouse hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license to (a) install and use the Playhouse Apps on mobile devices and/or tablets owned and/or controlled by you, and (b) access and use the Site, over the internet, through the Site and/or Playhouse Apps and view the Content (defined in Section 8.1 below), made available through the Playhouse Services, in each case solely for your personal, non-commercial use, and otherwise in accordance with these Terms.
5.7 Prohibited Uses
By using the Playhouse Services (or any part thereof), you agree that you will not, and will not permit any other person to:
(a) Modify, adapt, translate or create derivative works based on the Playhouse Services (or any part thereof), Content, or any related documentation;
(b) Reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Playhouse Apps and/or Site, except as expressly permitted by applicable law;
(c) Distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Playhouse Services, Content, or any related documentation;
(d) Remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Playhouse or its suppliers on or within the Playhouse Services, Content, or related documentation;
(e) Use the Playhouse Services to store or transmit malicious code or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(f) Interfere with or disrupt the integrity or performance of the Playhouse Services or any system, network or data;
(g) Attempt to gain unauthorized access to the Playhouse Services (or any part thereof) or Content, or its related systems or networks, including, without limitation, bypassing any “captcha” requirements or similar precautions;
(h) Frame or utilize framing techniques to enclose the Playhouse Services, Content, or any portion thereof;
(i) Use any meta tags, "hidden text", queries, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Playhouse Services, Content (except caching or as necessary to view the Site), or the personal information of others without our prior written permission or authorization;
(j) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(k) Violate any contract, rules or policies that govern the use of your mobile and/or tablet device, as directed by the applicable wireless carrier and/or mobile device manufacturer; and/or
(l) Use the Playhouse Services in violation of any applicable local, state, national or international law, including, without limitation, any and all applicable export laws.
5.8 Open Source Components
The Playhouse Apps may contain third party software, including, without limitation, open source software components (“Open Source Components”). Open Source Components are not licensed under these Terms, but are instead licensed under the terms of the applicable license agreement for such Open Source Components. Your use of Open Source Components is subject to the terms of each applicable license which are available to you on request from Playhouse. Notwithstanding any provision herein to the contrary, you are solely responsible for your compliance with such licenses. As used in these Terms, the term “Playhouse Apps” does not include Open Source Components.
5.9 Third Party Integrations
Playhouse may embed and/or integrate into the Site and/or Playhouse Apps, and/or enable you connect and/or use in connection with the Playhouse Services, third party products, services and/or applications (including, without limitation, data and content distribution products and services) which are subject to separate terms and conditions (collectively, “Third Party Integrations”).
For example, we allow users to register and/or log-in to Accounts using existing social media accounts (e.g., Facebook, Google, and Apple) and we integrate with Google Maps and deliver content via the YouTube Player and Vimeo. Your use of any Third Party Integrations is governed by the terms of service agreements of the respective service providers. The Third Party Integrations are not part of or included in the term “Playhouse Services” as used through these Terms, and are operated and controlled by the applicable third party providers of the Third Party Integrations.
YOU ARE RESPONSIBLE FOR REVIEWING AND COMPLYING WITH THE APPLICABLE TERMS OF SERVICE AND PRIVACY NOTICES FOR SUCH THIRD PARTY INTEGRATIONS.
6. USER CONTENT
6.1 User Content
Subject to the licenses you grant us in these Terms, as between Playhouse and you, you will retain ownership of any messages, photos, video, audio, images, data, information, text and/or any other content or materials that you post, submit, transmit, and/or upload, or otherwise provide us, in connection with the use of the Playhouse Services (collectively, “User Content”). Please be advised that, any User Content posted or submitted to or in connection with public chats, events, tournaments, contests, forums, message boards, or other communication tools through the Playhouse Services will be considered non-confidential and non-proprietary.
6.2 License to User Content
By providing User Content, you grant Playhouse a worldwide, non-exclusive, royalty-free, fully paid, transferable right and license (including through the use of subcontractors) to copy, reproduce, use, host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify (for the purpose of formatting for display), and distribute your User Content, in whole or in part, in connection with your use of the Playhouse Services, and as reasonably necessary to provide the Playhouse Services to you and other users of the Playhouse Services. Playhouse will not review, share, distribute, or reference any User Content except as provided in these Terms, the Text Service Addendum, and our Privacy Notice, or as may be required by law.
6.3 Responsibility for User Content
You acknowledge and agree that you, and not Playhouse, are solely responsible for any User Content submitted, transmitted and/or contributed by you, including the legality, reliability, accuracy and appropriateness of such User Content. For the avoidance of doubt, you may not upload, transmit, distribute or share any User Content (or any part thereof) through the Playhouse Services that is owned, controlled or obtained from a third party, or that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless you are the owner of such rights or you have valid and enforceable permission from the rightful owner to use and upload, transmit, distribute and/or share the User Content through the Playhouse Services. By providing User Content, you represent and warrant that: (a) you own or control all rights in and to User Content, and have the necessary rights to grant the licenses granted to Playhouse herein; (b) you have obtained all permissions and/or approvals as may be necessary or required to transmit User Content, or any personally identifiable information therein, in connection with the use of the Playhouse Services; and (c) all User Content does and will comply with these Terms, including, without limitation, the Content Standards and Community Guidelines.
6.4 Violations of Content Standards and Community Guidelines
Playhouse takes conduct and use violations very seriously. If you post, submit or otherwise provide User Content or engage in behavior in any manner in violation of these Terms, including, without limitation, the Content Standards and Community Guidelines, or in a way that Playhouse deems to be unacceptable (in its sole discretion), such use may result in immediate account suspension or cancellation and the possibility that Playhouse will pursue civil remedies. In addition, without limiting any other rights or remedies of Playhouse hereunder, Playhouse retains the right to remove any User Content that it deems, in its sole discretion, unacceptable and/or in violation of these Terms, including, without limitation, the Content Standards and Community Guidelines.
7. FEES, CHANGES TO THE PLAYHOUSE SERVICES
Playhouse does not currently charge any fees for the access and/or use of the Playhouse Services; provided that, Playhouse reserves the right however, upon prior notice to you, to charge a fee for the Playhouse Services. In addition, Playhouse reserves the right to either temporarily or permanently modify, suspend or discontinue the Playhouse Services and/or Content (or any part thereof) with or without notice (including, without limitation, charging fees to download the Playhouse App and/or use the Service). You agree that Playhouse will not be liable to you or to any third party for any modification, suspension or discontinuance of the Playhouse Services and/or Content (or any part thereof).
8. PROPRIETARY RIGHTS; INFRINGEMENT POLICY
8.1 Playhouse Proprietary Rights
As between you and Playhouse, Playhouse and its licensors retain all right, title and interest in and to the Playhouse Services and any and all content, messages, data, text, graphics, images, photos, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Playhouse Services, but excluding your User Content (collectively, the “Content”), and any and all modifications, enhancements and updates to the Playhouse Services and/or Content (or any part thereof). All Playhouse trademarks are strictly owned by Playhouse, and nothing in these Terms will be construed to transfer ownership rights or grant any permission, license or other rights to any Playhouse trademark without written authorization from Playhouse. The trademarks, service marks, logos, and/or names of individuals, companies and/or products mentioned through the Playhouse Services or within Content may be the trademarks of their respective owners. Playhouse reserves all rights and licenses not expressly granted to you in these Terms and no implied license is granted by Playhouse. The Playhouse Services (and its underlying technology) and Content, are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries.
You acknowledge that any ideas, inventions, suggestions for improvement or discussions submitted by you regarding any aspect of the Playhouse Services, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (“Feedback”) may be used by Playhouse without compensation or attribution to you, and you hereby grant Playhouse, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all your intellectual property rights in and to such Feedback, for Playhouse to use and exploit for any purpose.
8.3 Infringement Policy
If you believe that the Playhouse Services (or any part thereof) and/or any content or materials made available through the Playhouse Services violates your copyright and/or trademark rights, please see Playhouse’s Infringement Policy for instructions on sending us a notice of copyright and/or trademark infringement.
9. THIRD PARTY LINKED SITES & SERVICES
The Site and/or Playhouse Apps may contain links to the third party websites (“Linked Sites”). Playhouse may receive payment or a commission if you purchase any services, products, applications, and/or goods offered by or through the provides of such Linked Sites (“Third Party Services”); however, the Linked Sites and the applicable Third Party Services are not controlled or owned by Playhouse. If you decide to use such Linked Sites and/or any Third Party Services, be advised that your use is governed solely by the terms and conditions of the respective providers of such Linked Sites and/or the Third Party Services. YOU ARE RESPONSIBLE FOR REVIEWING AND COMPLYING WITH THE APPLICABLE TERMS OF SERVICE AND PRIVACY NOTICES FOR SUCH LINKED SITES AND/OR THIRD PARTY SERVICES.
10. INDEMNIFICATION - OR WHAT HAPPENS IF WE GET SUED
We hope this never happens, but if Playhouse gets sued because of something that you did, you agree to defend and indemnify us. This means that you agree to defend Playhouse, its employees, contractors, and/or agents, and hold us harmless from and against any and all claims, actions, demands, liabilities, losses, damages, expenses, and costs (including reasonable attorney fees) arising from (a) your breach of these Terms, including, without limitation any Additional Terms, (c) your breach of any license or other agreement applicable to any Third Party Integrations, (c) your use or misuse of the Playhouse Services and/or Content (or any part thereof), (d) your User Content, and/or (e) your breach of any law or the intellectual property and/or privacy rights of a third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, in which case, you agree to cooperate with us in the defense of the claim. Some jurisdictions limit consumer indemnities, so some portions or all of this indemnity provision may not apply to you.
11. DISCLAIMERS OF WARRANTIES
& LIMITATIONS ON OUR LIABILITY
11.1 Disclaimer of Warranties
THE PLAYHOUSE SERVICES, THE CONTENT, AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PLAYHOUSE, ARE PROVIDED "AS IS" AND "AS AVAILABLE". PLAYHOUSE AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. PLAYHOUSE AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE PLAYHOUSE SERVICES (OR ANY PART THEREOF), THE CONTENT, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PLAYHOUSE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY INTEGRATIONS, LINKED SITES AND/OR THIRD PARTY SERVICES); (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PLAYHOUSE, ANY THIRD PARTY, OR THROUGH THE PLAYHOUSE SERVICES, SHALL CREATE ANY WARRANTY.
11.2 Disclaimer - Third Party Integrations and Linked Sites
PLAYHOUSE DOES NOT ENDORSE, IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS AS TO ANY THIRD PARTY INTEGRATIONS, LINKED SITES AND/OR THIRD PARTY SERVICES, THEIR CONTENT OR THE MANNER IN WHICH THE PROVIDERS OF SUCH THIRD PARTY INTEGRATIONS, LINKED SITES AND/OR THIRD PARTY SERVICES HANDLE YOUR DATA. IN ADDITION, PLAYHOUSE IS NOT AND WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF ANY LINKED SITES AND/OR THIRD PARTY SERVICES. PLAYHOUSE IS NOT AND SHALL NOT LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR ACCESS OR USE OF ANY THIRD PARTY INTEGRATIONS, LINKED SITES, AND/OR THIRD PARTY SERVICES, OR YOUR RELIANCE ON THE PRIVACY PRACTICES OR OTHER POLICIES OF SUCH THIRD PARTY INTEGRATIONS, LINKED SITES AND/OR THIRD PARTY SITES.
11.3 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLAYHOUSE BE LIABLE OR OBLIGATED, WITH RESPECT TO THESE TERMS, THE PLAYHOUSE SERVICES (OR ANY PART THEREOF), THE CONTENT, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY PLAYHOUSE, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF PLAYHOUSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF ONE HUNDRED DOLLARS ($100.00); (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (C) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (E) FOR ANY MATTER BEYOND PLAYHOUSE’S REASONABLE CONTROL. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THESE TERMS OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. PLAYHOUSE DISCLAIMS ALL LIABILITY OF ANY KIND OF PLAYHOUSE’S AFFILIATES, LICENSORS AND SUPPLIERS.
11.4 Application of disclaimers and limitations to Consumers
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the disclaimers, exclusions and limitations set forth in this Section 11 may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
11.5 Basis of the Bargain
The warranty disclaimer and limitation of liability set forth above in this Section 11 are fundamental elements of the basis of the agreement between Playhouse and you. Playhouse would not be able to provide the Playhouse Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Playhouse’s suppliers.
12. AVAILABILITY OF THE PLAYHOUSE
Information describing the Playhouse Services is accessible worldwide but this does not mean the Playhouse Services, or certain portions thereof, are available in your country. Playhouse may restrict access to the Playhouse Services, or portions thereof, in certain countries in its sole discretion. It is your responsibility to make sure your use of the Playhouse Services is legal in your country of residence. The Playhouse Services may not be available or accessible in all languages.
13. THIRD PARTY RIGHTS
13.1 Third Party Rights
You acknowledge and agree that certain distributors (such as app store providers) are intended beneficiaries of these Terms and have the right to enforce these Terms directly against you. Other than as set out in this Section 13, these Terms are not intended to grant rights to anyone except you and Playhouse, and in no event shall these Terms create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of these Terms are not subject to the consent of any other person.
13.2 iOS App
The following additional terms and conditions apply with respect to any Playhouse Apps provided or made available to you by Playhouse hereunder designed for use on an Apple iOS-powered mobile device (an “iOS App”): You acknowledge that these Terms are between you and Playhouse only, and not with Apple, Inc. (“Apple”). Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service. Playhouse, and not Apple, is solely responsible for the iOS App and related content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. You agree that Playhouse, and not Apple, is responsible for addressing any claims by you relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Playhouse as the provider of the iOS App. You agree that Playhouse, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App. You represent and warrant that you: (i) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as it relates to the license granted herein to you to use the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to the license granted herein to you to use the iOS App as a third-party beneficiary thereof.
13.4 Android App
The following additional terms and conditions apply with respect to any Playhouse Apps provided or made available to you by Playhouse, designed for use on an Android-powered mobile device and/or tablet (an “Android App”): you acknowledge that these Terms are between you and Playhouse only, and not with Google, Inc. (“Google”). Your use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where you have obtained the Android App. Playhouse, and not Google, is solely responsible for the Android App and the related content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms. You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to the Android App.
14. GOVERNING LAW AND DISPUTE
14.1 Governing Law
These Terms shall be governed in all respects by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Playhouse Apps. Furthermore, these Terms (including without limitation, the Playhouse Apps) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
Except as otherwise set forth in these Terms, you agree that any dispute between you and Playhouse arising out of or relating to these Terms, the Playhouse Services (or any part thereof), and/or any Content, materials, and/or services provided by Playhouse hereunder (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
14.3 Notice of Disputes
A party who intends to seek arbitration or bring other action permitted under this Section 14, 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 (“Dispute Notice”). Playhouse’s address for Dispute Notices is: Square Footage, Inc. d/b/a Playhouse, Attention: Notice of Dispute, 1945 Contra Costa Blvd., #2314, Pleasant Hill, CA 94523. The Dispute Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought.
14.4 Informal Resolution
You and Playhouse agree to use good faith efforts to resolve the Dispute directly, but if we do not reach an agreement to do so within 30 days after the Dispute Notice is received, you or Playhouse may commence an arbitration proceeding or other permitted action, as set forth in this Section 14.
14.5 Agreement to Arbitrate
In the interest of resolving Disputes between you and Playhouse in the most expedient and cost-effective manner, and except as described in Section 14.9, you and Playhouse agree that every dispute arising in connection with these Terms will be resolved by binding individual (not class) arbitration (the “Agreement to Arbitrate”). 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 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. THIS AGREEMENT TO ARBITRATE MEANS YOU AND PLAYHOUSE WAIVE YOUR/ITS RESPECTIVE RIGHTS TO A JURY TRIAL. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE AGREEMENT TO ARBITRATE AND THE ARBITRATION PROVISIONS SET FORTH IN THIS SECTION 14 ARE GOVERNED BY THE FEDERAL ARBITRATION ACT.
Any arbitration between you and Playhouse 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 this Section 14.6. You and we agree that the following rules will apply to the proceedings: (a) the arbitration will be heard and determined by a single, neutral arbitrator selected in accordance with the AAA Rules; (b) the arbitration will take place in the county where you live or at another mutually agreed location; (c) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (d) the arbitration must not involve any personal appearance by the parties or witnesses (unless we and you agree otherwise), and provided that, Disputes that involve a claim of more than $10,000 USD must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person; and (e) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. The arbitrator shall have the authority to grant all relief that a court of competent jurisdiction could order, including awards of attorney’s fees and costs. 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. A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
You are responsible for paying your portion of the fees set forth in the AAA fee schedule and Playhouse will be responsible for the remainder of the fees. If you believe you cannot afford the AAA fees, you may apply to AAA for a fee waiver. 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 Playhouse for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
14.8 Opting-Out of Arbitration
If you do not wish to resolve disputes by binding arbitration, you may opt out of the Agreement to Arbitrate within 30 days after the date that you first agree to these Terms by sending a letter to Square Footage, Inc. d/b/a Playhouse, Attention: Arbitration Opt-Out, 1945 Contra Costa Blvd., #2314, Pleasant Hill, CA 94523, that specifies: your full legal name, the email address used to register an Account (if applicable), and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Playhouse receives your Opt-Out Notice, the Agreement to Arbitrate will be void and the parties agree that the exclusive jurisdiction and venue described in Section 14.10 will govern any action arising out of or related to these Terms. The remaining provisions of this Section 14 will not be affected by your Opt-Out Notice.
14.9 Exception to Arbitration
Notwithstanding anything in these Terms to the contrary to the extent you have in any manner violated or threatened to violate any of Playhouse’s intellectual property rights, Playhouse may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts. In addition, despite the Agreement to Arbitrate, 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; or (c) seek injunctive relief in a court of law in aid of arbitration.
14.10 Enforceability; Venue
If the Agreement to Arbitrate is found not to apply to your or our claim, you and Playhouse agree that any judicial proceeding will be brought in the federal or state courts located in Alameda County, California. Both you and Playhouse consent to venue and personal jurisdiction there.
14.11 No Class Actions
YOU MAY ONLY RESOLVE DISPUTES WITH PLAYHOUSE ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THESE TERMS.
14.12 Time Limitation to Bring Claims
Notwithstanding any statute or law to the contrary, you expressly acknowledge and agree that any claim or cause of action arising out of or related to your use of Playhouse Services (or any part thereof) or these Terms must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
15. NOTICES TO PLAYHOUSE
You must send notices of any legal nature to us either by (1) email: email@example.com, Subject Line: Legal Notice; or (2) certified U.S. Mail or by Federal Express (signature required) to Square Footage, Inc. d/b/a Playhouse, Attention: Playhouse Legal Department, 1945 Contra Costa Blvd., #2314, Pleasant Hill, CA 94523.
16. COMMERCIAL ITEMS
The Playhouse Apps, and any related end user documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation will be licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to these Terms.
Neither the rights nor the obligations arising under these Terms are assignable by you, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of these Terms must be in writing and executed by both parties. The failure of either party to exercise any right provided for by these Terms shall not be deemed a waiver of that right. If any term or provision of these Terms is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from these Terms and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in these Terms. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in these Terms and/or its performance shall be construed as creating a joint venture or agency between Playhouse and you. Playhouse may delegate the performance of any services hereunder to its affiliates and contractors. These Terms, our Privacy Notice, Text Service Addendum, Content Standards and Community Guidelines, Infringement Policy, and any other Additional Terms, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to you may be provided by email. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to.” You agree that these Terms will not be construed against Playhouse by virtue of having drafted them. The official text of these Terms (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that these Terms be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of these Terms, reference will be made only to these Terms as written in English and not to any translation into another language. Any delay in performance of any duties or obligations of either party will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, or any other event beyond the reasonable control of such party.
Please feel free to contact us at firstname.lastname@example.org if you have any questions about these Terms.