Privileged and Confidential
Effective Date: [April 1st], 2023.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION / JURY TRIAL WAIVER PROVISIONS THAT, TO THE EXTENT APPLICABLE TO YOU, REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
In some instances, additional or different terms, posted on the Service, apply to your use of certain parts of the Service (individually and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, [these Terms] [the Additional Terms] will control unless the Additional Terms expressly state otherwise.
Updates to these Terms and Additional Terms
We may prospectively change these Terms and Additional Terms by posting new or changed terms on the Service as more fully explained in Section 9.
1. OWNERSHIP AND YOUR RIGHTS TO USE THE SERVICE AND CONTENT.
A. Ownership. The Service and all of its content (“Content”), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by Studios Inn, our licensors, and certain other third parties. All right, title, and interest in and to the Content and Intellectual Property available via the Service is the property of Studios Inn, our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other Intellectual Property and unfair competition rights and laws to the fullest extent possible. Studios Inn owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
B. Your Rights to Use the Service and Content.
(i) Your right to use the Service and Content is subject to your strict compliance with these Terms and the Additional Terms. Your right to access and use the Service and the Intellectual Property shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability. As your right to access and use the Service and the content is personal to you, you may not assign nor transfer your right; any attempt to do so is void. You may, for your personal, non-commercial, lawful use only (collectively, the following are the “Studios Inn Licensed Elements”):
- Display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you;
- Subject to any applicable Additional Terms, if the Service includes a “Send to Friend,” social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a communication that includes content, or to post our content to third-party services or your own site or online service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any manner that violates applicable law or third-party rights or reflects negativity on us, and only send to recipients you have permission to contact;
- If made available to you, obtain a registered personal account (and/or related username and password) on the Service and interact with the Service in connection therewith;
- Link to the Service from a website or other online service, so long as: (a) the links only incorporate text, and do not use any Studios Inn names, logos, or images, (b) the links and the content on your website do not suggest any affiliation with Studios Inn or cause any other confusion, and (c) the links and the content on your website do not portray Studios Inn or its products or services in a false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to Studios Inn. Studios Inn reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party; and
- Use any other functionality expressly provided by Studios Inn on or through the Service for use by users, subject to these Terms and any applicable Additional Terms.
C. Rights of Others. In using the Service, you must respect the Intellectual Property and rights of others and Studios Inn. Your unauthorized use of Content may violate the rights of others and applicable laws, and may result in your civil and criminal liability.
D. Reservation of all Rights Not Granted as to Content and Service. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Service and content. No other right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY Studios Inn AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any Content or the Service for any purpose is prohibited.
2. SERVICE AND CONTENT USE RESTRICTIONS.
A. Service Use Restrictions. You agree that you will not: (i) use any meta tags or any other “hidden text” utilizing any Intellectual Property; (ii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to Studios Inn; (iii) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service by any means whatsoever or modify any Service source or object code or any Software or other products, services, or processes accessible through any portion of the Service; (iv) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Studios Inn, or other users of the Service; (v) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Service or any feature that restricts or enforces limitations on use of or access to the Service or the Content; (vi) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, without the express consent of such users); (vii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (vii) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Service, you: (i) will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (iii) will keep intact all Trademark, copyright, and other Intellectual Property and other notices contained in such content; (iv) will not use such content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) will not make any modifications to such content (other than to the extent of your specifically permitted use of the Studios Inn Licensed Elements, if applicable); (vi) will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any thirdparty or on any third-party application or website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Studios Inn or, in the case of content from a licensor, the owner of the content; and (vii) will not insert any code or product to manipulate such content in any way that adversely affects any user experience or the Service.
C. Availability of Service and Content. Studios Inn, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Service and/or Content (and any elements and features of them), in whole or in part, for any reason, in Studios Inn’s sole discretion, and without advance notice or liability.
3. CREATING AN ACCOUNT.
A. If you register with us or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your Device and for all activity under your account. Usernames and passwords must be personal and unique that do not violate the rights of any person or entity, and is not offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion. You are solely responsible for your registration information and for updating and maintaining it. You will immediately notify us by email of any unauthorized use of your account, password, or username, or any other breach of security, but will remain responsible for any unauthorized use thereafter. You will not sell, transfer, or assign your account or any account rights.
B. Accounts may only be set up by an authorized representative of the individual that is the subject of the account and who is of the age of majority. We do not review accounts for authenticity, and are not responsible for any unauthorized accounts that may appear on the Service. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice.
4. NOTICES, QUESTIONS AND CUSTOMER SERVICE. You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us. All legal notices to us must be sent to: 348 South Clover Avenue, San Jose, CA 95128. If you have a question regarding the Service, you may contact Studios Inn Customer Support by sending an email or calling us at [408-850-7800]. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.
5. PRODUCT/SERVICE SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS.
We strive to accurately describe our products or services offered on the Service; however, we do not warrant that such specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. As permitted by applicable law, Studios Inn shall have the right to refuse or cancel any orders in its sole discretion. Your orders are offers to purchase subject to our acceptance, which we may reject or cancel subject to refund. If we charged your credit or other account prior to rejection or cancellation, we will reissue credit to your account. Additional Terms may apply to our rejection or cancellation. If a product or service you purchased or accepted from Studios Inn is not as described, as permitted by applicable law, your sole remedy is to cancel the purchase and receive a credit for the purchase price.
6. ARBITRATION AND DISPUTE TERMS.
A. Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Service, the Content, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in San Francisco, California. Each party submits to personal jurisdiction and venue in San Francisco, California for any and all purposes.
B. Pre-Arbitration Notification. Studios Inn and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that Studios Inn need not do so in circumstances where its claims of Intellectual Property rights are concerned (“IP Disputes,” with all other disputes referred to as “General Disputes”). The party making a claim – whether you or Studios Inn – shall send a letter to the other side briefly summarizing the claim and the request for relief. If Studios Inn is making a claim, the letter shall be sent, via email, to the email address listed in your Studios Inn account, if applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section 6.B. If you are making a claim, the letter shall be sent to 348 South Clover Avenue, San Jose, CA 95128 (Attn: Executive Office Manager). If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 6. Either you or Studios Inn, however, may seek provisional remedies (such as preliminary injunctive relief, subject to Section 6.D) before the expiration of this sixty (60)-day period.
C. Arbitration of Claims. [Unless you give us notice of opt-out within five (5) business days of your first use of the Service, addressed to: 348 South Clover Avenue, San Jose, CA 95128, all] [All] actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in San Francisco County, California, before a single arbitrator in accordance with California Code of Civil Procedure §§ 1280 et seq. If the matter in dispute is between Studios Inn and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. We may have the right to pay the JAMS fees if required for arbitration to be enforceable. If you are a consumer, you have the right to an in-person hearing. The arbitration shall be a confidential proceeding and closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The parties may engage in the discovery or exchange of non-privileged information relevant to the dispute. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in San Francisco County, California or, if sought by Studios Inn, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the San Francisco County Superior Court or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.
D. Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT
E. Governing Law. These Terms and any applicable Additional Terms, General Disputes and IP Disputes, and any other claim brought by you against Studios Inn or by Studios Inn against you pursuant to this Section 6, or otherwise related to the Service, Content, Studios Inn Licensed Elements, or other Studios Inn products or services, will be governed by, construed, and resolved in accordance with, the laws of the State of California, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. Notwithstanding the foregoing, this Section 6 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a selfexecuting basis. You and Studios Inn agree that we intend that this Section 6 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 6 can only be amended by mutual agreement. Either party may seek enforcement of this Section 6 in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim.
F. Class Action Waiver. As permitted by applicable law, both you and Studios Inn waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 6 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.
G. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS OR ANY ADDITIONAL TERMS, THE BREACH HEREOF OR THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. H. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 6.F.
I. The provisions of this Section 6 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 6 shall remain in full force and effect notwithstanding any termination of your use of the Service or these Terms.
7. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
A. AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. To the fullest extent permissible by applicable law, Studios Inn and their direct and indirect parents, subsidiaries, affiliates, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Studios Inn Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, without limitation, the Service, Content, Studios Inn Licensed Elements, or other Studios Inn products or services.
B. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN, OR IN APPLICABLE ADDITIONAL TERMS, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, STUDIOS INN PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
8. LIMITATIONS OF OUR LIABILITY.
A. AS PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY Studios Inn PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to, without limitation, the Service, Content, Studios Inn Licensed Elements or other Studios Inn products or services, except, to the extent not waivable under applicable law, for direct damages for personal injury caused by a physical product provided by Studios Inn.
B. The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Studios Inn Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
C. AS PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL STUDIOS INN PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID STUDIOS INN IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S).
9. UPDATES TO TERMS.
It is your responsibility to review the posted Terms and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. In the event any notice to you of new, revised, or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised, or additional terms by discontinuing use of the Service.
10. GENERAL PROVISIONS.
A. Studios Inn’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants Studios Inn a right of consent or approval, or permits Studios Inn to exercise a right in its “sole discretion,” Studios Inn may exercise that right in its sole and absolute discretion. No Studios Inn consent or approval may be deemed to have been granted by Studios Inn without being in writing and signed by an officer of Studios Inn.
D. Operation of Service; Availability of Products and Services; International Issues. Studios Inn controls and operates the Service from the U.S.A., and makes no representation that the Service is appropriate or available for use beyond the U.S.A. If you use the Service from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.
E. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. To the extent permitted by applicable law, you agree to waive and will waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
G. Assignment. Studios Inn may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Studios Inn.
H. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances, or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Studios Inn in exercising any of rights, powers, or remedies under these Terms and any applicable Additional Terms will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
© [04.01.2023] Daiwa Living California. All Rights Reserved.