Besomebody Terms of Service.PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.IN PARTICULAR, PASSIONARIES SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE CITIES. SOME CITIES HAVE LAWS THAT RESTRICT THEIR ABILITY TO PROVIDE SERVICES. PENALTIES MAY INCLUDE FINES OR OTHER ENFORCEMENT. PASSIONARIES SHOULD REVIEW LOCAL LAWS BEFORE PROVIDING SERVICES ON BESOMEBODY.
If you are using the Application, Site or Services you are contracting with Besomebody, Inc. (“Besomebody“, “we“, “us“, or “our“).
THE APPLICATION, SITE AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH PASSIONARIES (DEFINED BELOW) MAY CREATE LISTINGS (DEFINED BELOW) FOR EXPERIENCES (DEFINED BELOW) AND PARTICIPANTS (DEFINED BELOW) MAY LEARN ABOUT AND BOOK EXPERIENCES DIRECTLY WITH THE PASSIONARIES. YOU UNDERSTAND AND AGREE THAT BESOMEBODY IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PASSIONARIES AND PARTICIPANTS. BESOMEBODY HAS NO CONTROL OVER THE CONDUCT OF PASSIONARIES, PARTICIPANTS AND OTHER USERS OF THE APPLICATION, SITE AND SERVICES OR ANY EXPERIENCES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
1. Key Terms
“Besomebody Content” means all Content that Besomebody makes available through the Application, Site, or Services, including any Content licensed from a third party, but excluding User Content.
“Booking Request Period” means the time period starting from the time when a booking is requested by a Participant (as determined by Besomebody in its sole discretion), within which a Passionary may decide whether to confirm or reject that booking request, as stated on the Application, Site, or Services. Different Booking Request Periods may apply in different places.
“Collective Content” means User Content and Besomebody Content.
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“Listing” means an Experience that is listed by a Passionary as available for booking via the Application, Site and Services.
“Participant” means a User who requests an Experience from a Passionary via the Application, Site or Services, or a User who engages in an Experience and is not the Passionary for such Experience.
“Passionary” means a pre-approved User who is enabled to create Listings via the Application, Site and Services.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), tourist or other visitor taxes, activity taxes, fees (such as convention center fees) that Experience providers may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
“User” means a person who completes Besomebody’s account registration process, including but not limited to Passionaries and Participants, as described under “Account Registration” below.
“User Content” means all Content that a User posts, uploads, publishes, reviews, submits or transmits to be made available through the Application, Site or Services.
Certain areas of the Application and Site (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Application, Site Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Application, Site, Services, or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE APPLICATION, SITE OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, OR BY PARTICIPATING IN THE REFERRAL PROGRAM, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE APPLICATION AND SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE APPLICATION, SITE, SERVICES, OR COLLECTIVE CONTENT OR TO PARTICIPATE IN THE REFERRAL PROGRAM. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Besomebody reserves the right, at its sole discretion, to modify the Application, Site or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Application, Site or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Application, Site and Services.
You must be at least 13 years old to use the Application, Site and Services.
4. How the Application, Site and Services Work
The Application, Site and Services can be used to facilitate the listing and booking of personalized experiences guided by Passionaries (“Experiences”). Such Experiences are included in Listings on the Application, Site and Services by Passionaries. You must be a registered User (see below) of the Application, Site and Services to view, book or create Listings and Experiences.
As stated above, Besomebody makes available an online platform or marketplace with related technology for Participants and Passionaries to meet online and arrange for bookings of Experiences directly with each other. Besomebody is not a provider of any Experiences. Unless explicitly specified otherwise in the Besomebody platform, Besomebody’s responsibilities are limited to: (i) facilitating the availability of the Application, Site and Services and (ii) serving as the limited payment collection agent of each Passionary for the purpose of accepting payments from Participants on behalf of the Passionary.
PLEASE NOTE THAT, AS STATED ABOVE, THE APPLICATION, SITE AND SERVICES ARE INTENDED TO BE USED TO FACILITATE PASSIONARIES AND PARTICIPANTS CONNECTING AND BOOKING EXPERIENCES DIRECTLY WITH EACH OTHER. BESOMEBODY CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY EXPERIENCES. BESOMEBODY IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND EXPERIENCES. ACCORDINGLY, ANY BOOKINGS WILL BE MADE AT THE PARTICIPANT’S OWN RISK.
In order to access all features of the Application and Site, and to book an Experience or create a Listing, you must register to create an account (“Besomebody Account”) and become a User. You may register to join the Services directly via the Application or Site or as described in this section.
As part of the functionality of the Application, Site and Services, you may link your Besomebody Account with your accounts on certain Third-Party Social Networking Sites (“SNS”), by either: (i) providing your Third-Party Account login information to Besomebody through the Site, Services or Application; or (ii) allowing Besomebody to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Besomebody and/or grant Besomebody access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Besomebody to pay any fees or making Besomebody subject to any usage limitations imposed by such third-party service providers. By granting Besomebody access to any Third-Party Accounts, you understand that Besomebody will access, post, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Application, Site and Services via your Besomebody Account and Besomebody Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be User Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your Besomebody Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or Besomebody’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Besomebody Account and your Third-Party Accounts, at any time, by accessing the “Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. Besomebody makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and Besomebody is not responsible for any SNS Content.
We will create your Besomebody Account and your Besomebody Account profile page for your use of the Application and Site based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Besomebody Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Besomebody reserves the right to suspend or terminate your Besomebody Account and your access to the Application, Site and Services if you create more than one (1) Besomebody Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any Experiences or actions under your Besomebody Account, whether or not you have authorized such Experiences or actions. You will immediately notify Besomebody of any unauthorized use of your Besomebody Account.
Experience Listings (Passionaries)
As a Passionary, you may create Listings. To create a Listing, you will be asked a variety of questions about the Experience to be listed, including, but not limited to, the location, duration, nature, special restrictions, and availability of the Experience and pricing and related rules and terms. Listings will be made publicly available via the Application, Site and Services. Users will be able to book your Experience via the Application, Site and Services based upon the information provided in your Listing. You understand and agree that once a Participant requests a booking of your Experience, you may not request the Participant to pay a higher price than in the booking request. You also understand that you may not accept any payment – cash, check, credit or goods – for any Experience, except for the payment distributed to you by Besomebody.
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or a Participant’s engagement in, an Experience in a Listing you post (i) will not breach any agreements you have entered into with any third parties, and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Experience included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that Besomebody assumes no responsibility for a Passionary’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Besomebody reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Besomebody, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Besomebody’s rules regarding User Conduct, or otherwise harmful to the Application, Site or Services.
If you are a Passionary, you understand and agree that Besomebody does not act as an insurer or as your contracting agent. If a Participant requests a booking of your Experience and participates in your Experience, any agreement you enter into with such Participant is between you and the Participant, and Besomebody is not a party thereto. Notwithstanding the foregoing, Besomebody serves as the limited authorized payment collection agent of the Passionary for the purpose of accepting, on behalf of the Passionary, payments from Participants of such amounts stipulated by the Passionary (including other fees and/or Taxes).
If you are a Passionary, Besomebody makes certain tools available to you to help you to make informed decisions about which Users you choose to confirm for booking for your Experience. You acknowledge and agree that, as a Passionary, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who are present at the Experience at your request or invitation, excluding the Participant (and the individuals the Participant invites to the Experience, if applicable.)
Besomebody recommends that Passionaries obtain appropriate insurance for their Experiences. Please review any insurance policy that you may have for your Experience carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Participants (and the individuals the Participant invites to the Experience, if applicable) while participating in the Experience.
Besomebody may offer Passionaries the option of having production artists produce content of their Experiences. If you as a Passionary choose to have a production artist do this, the content produced will be made available to you to include in your Listing with a watermark or tag bearing the words “#besomebody” or similar wording (“Verified Content”). All images, materials and content created by these Production Artists provided by Besomebody, including Verified Content, constitute Besomebody Content, regardless of whether you include them in your Listing.
5. No Endorsement
Besomebody does not endorse any Participant, Passionary or any Experience. You understand that Verified Content is intended only to indicate, i) a Passionary’s story at the time his or her Account was created; and/or ii) a visual representation of the Listing(s) at the time it was created. Verified Content is therefore not an endorsement by Besomebody of any Passionary or any Experience. Participants and Passionaries are required by these Terms to provide accurate information, and although Besomebody may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any User or the User’s purported identity or background.
Any references in the Application, Site or Services to a User being “verified” or “connected” (or similar language) only indicate that the User has completed a relevant verification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Besomebody about any User, including of the User’s identity and whether the User is trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Application, Site and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to book a Passionary or to accept a booking request from a Participant, or to have any other interaction with any other User.
By using the Application, Site or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular Users or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Besomebody with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Users on the Site and Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by a Passionary against Besomebody regarding the remittance of payments received from a Participant by Besomebody on behalf of a Passionary, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
6. Bookings and Financial Terms
“Experience Fees” means the amounts that are due and payable by a Participant in exchange for that Participant’s participation in an Experience. The Passionary alone, and not Besomebody, determines these amounts. The Passionary may in his or her sole discretion decide to include in these amounts (i) any other fee permitted on the Besomebody platform, or (ii) Taxes that the Passionary determines that he or she has to collect. “Service Fees” means the fee that Besomebody charges a Passionary for the use of its online platform, which is calculated as a percentage of the applicable Experience Fees. The Passionary Fees will be set at 3% of the Experience Fees, if selecting automatic transfer through our Payment partner (Braintree), and 5% if selecting payment through PayPal. These fees are subject to increase or decrease at the sole discretion of Besomebody.
Bookings and Financial Terms for Passionaries
If you are a Passionary and a booking is requested for your Experience via the Application, Site and Services, you will be required to either confirm or reject the booking request within the Booking Request Period, otherwise the booking request will be automatically cancelled. When a booking is requested via the Application, Site and Services, we will share with you [(i) the first and last name of the Participant who has requested the booking, (ii) a link to the Participant’s Besomebody Account profile page, (iii) the Participant’s Rating (“Rating”) if applicable, (iv) a designation if the User has been Verified (“Verified User”) through at least three verification steps, including but not limited to email, phone number, credit card, social security number, and/or background check, so that you can view such information before confirming or rejecting the booking request]. If you are unable to confirm or decide to reject a booking request within the Booking Request Period, any amounts collected by Besomebody for the requested booking will be refunded to the applicable Participant’s credit card and any pre-authorization of such credit card will be released. When you confirm a booking requested by a Participant, Besomebody will send you an email, text message or message via the Application confirming such booking, depending on the selections you make via the Application, Site and Services.
Besomebody will collect the Experience Fees at the time of booking confirmation (i.e. when the Passionary confirms the booking request) and will initiate payment of the Experience Fees (less Besomebody’s Service Fees) to the Passionary within 24 hours of when the Experience is completed and reviewed (“Experience Review”) by both parties (except to the extent that a refund is due to the Participant). If a Participant fails to complete the Experience Review within 24 hours, Besomebody will initiate payment of the Experience Fee. If the Participant flags the Experience via the Application or Site, Besomebody will hold the payment until any potential dispute is resolved at the sole discretion of Besomebody. The time it takes for the Passionary to receive payouts may depend upon the method for receiving payouts chosen by the Passionary. Some methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Passionary, including by deducting their charges from the payout amount.
Appointment of Besomebody as Limited Payment Collection Agent for Passionary
Each Passionary hereby appoints Besomebody as the Passionary’s limited payment collection agent solely for the purpose of accepting the Experience Fees from Participants.
Each Passionary agrees that payment made by a Participant through Besomebody shall be considered the same as a payment made directly to the Passionary, and the Passionary will make the Experience available to the Participant in the agreed-upon manner as if the Passionary has received the Experience Fees. Each Passionary agrees that Besomebody may, in accordance with the cancellation policy described in these Terms, (i) permit the Participant to cancel the booking and (ii) refund to the Participant that portion of the Experience Fees specified in the applicable cancellation policy. Each Passionary understands that Besomebody accepts payments from Participants as the Passionary’s limited payment collection agent and that Besomebody’s obligation to pay the Passionary is subject to and conditional upon successful receipt of the associated payments from Participants. Besomebody does not guarantee payments to Passionaries for amounts that have not been successfully received by Besomebody from Participants. In accepting appointment as the limited authorized agent of the Passionary, Besomebody assumes no liability for any acts or omissions of the Passionary.
Please note that Besomebody does not currently charge fees for the creation of Listings. However, you as a Passionary acknowledge and agree that Besomebody reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that Besomebody will provide notice of any Listing fee collection via the Application, Site and Services, prior to implementing such a Listing fee feature.
Bookings and Financial Terms for Participants
The Passionaries, not Besomebody, are solely responsible for honoring any confirmed bookings and making available any Experiences reserved through the Application, Site and Services. If you, as a Participant, choose to enter into a transaction with a Passionary for the booking of an Experience, you agree and understand that you will be required to enter into an agreement with the Passionary and you agree to accept any requirements, rules and restrictions associated with such Experience imposed by the Passionary. You acknowledge and agree that you, and not Besomebody, will be responsible for meeting the requirements of any such agreements, that Besomebody is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Besomebody disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that Besomebody is not a party to the agreement between you and the Passionary, Besomebody acts as the Passionary’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Passionary. Upon your payment of the Experience Fees to Besomebody, your payment obligation to the Passionary for the Experience Fees is extinguished, and Besomebody is responsible for remitting the Experience Fees (less the Service Fees), in the manner described in these Terms. In the event that Besomebody does not remit any such amounts as described in these Terms, such Passionary will have recourse only against Besomebody.
The Experience Fees payable will be displayed to a Participant before the Participant sends a booking request to a Passionary. As noted above, the Passionary is required to either confirm or reject the booking request within the Booking Request Period, otherwise the requested booking will be automatically cancelled. If a requested booking is cancelled (i.e. not confirmed by the applicable Passionary), any amounts collected by Besomebody will be refunded to such Participant, depending on the selections the Participant makes via the Application and Site, and any pre-authorization of such Participant’s credit card will be released, if applicable.
You as a Participant agree to pay Besomebody for the Experience Fees for any booking requested in connection with your Besomebody Account if such requested bookings are confirmed by the applicable Passionary. In order to establish a booking pending the applicable Passionary’s confirmation of your requested booking, you understand and agree that Besomebody reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Experience Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. Once Besomebody receives confirmation of your booking from the applicable Passionary, Besomebody will collect the Experience Fees in accordance with these Terms and the pricing terms set forth in the applicable Listing. Please note that Besomebody cannot control any fees that may be charged to a Participant by his or her bank related to Besomebody’s collection of the Experience Fees, and Besomebody disclaims all liability in this regard.
In connection with your requested booking, you will be asked to provide customary billing information such as name, billing address and credit card information either to Besomebody or its third-party payment processor(s). You agree to pay Besomebody for any confirmed bookings made in connection with your Besomebody Account in accordance with these Terms by one of the methods described on the Application or Site, e.g. by credit card. You hereby authorize the collection of such amounts by charging the credit card provided as part of requesting the booking, either directly by Besomebody or indirectly, via a third-party online payment processor or by one of the payment methods described on the Application or Site. Once your confirmed booking transaction is complete you will receive a confirmation email and mobile notification summarizing your confirmed booking.
Besomebody deducts the Service Fees from the Experience Fees before remitting the balance to the Passionary as described in these Terms. Balances will be remitted by Besomebody to Passionaries via direct deposit or other payment methods described on the Site or via the Application, in U.S. Dollars. Amounts may be rounded up or down as described the “Rounding Off” section below.
Besomebody uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing. In order for you to use Braintree’s payment processing services, you must enter into the Commercial Entity User Agreement (CEA) with Braintree and its sponsoring bank. The CEA is available at www.braintreepayments.com/agreements/merchant. By accepting this Agreement, you agree: (a) that you have downloaded or printed the CEA, and (b) that you have reviewed and agree to the CEA. Please note that Besomebody is not a party to the CEA and that you, Braintree and Braintree’s sponsoring bank are the three parties to the CEA and that Besomebody has no obligations or liability to you under the CEA. If you have questions regarding the CEA, please contact Braintree at 877.434.2894.
General Booking and Financial Terms
Cancellations and Refunds
If, as a Participant, you cancel your requested booking before the requested booking is confirmed by a Passionary, Besomebody will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested booking within a commercially reasonable time. If, as a Participant, you wish to cancel a confirmed booking made via the Application, Site and Services prior to the Experience, the Besomebody Cancellation Policy “Cancellation Policy”) described in these terms will apply to such cancellation. Our ability to refund the Experience Fees and other amounts charged to you will be contingent on the cancellation policy.
Besomebody may make promo codes available that offer Participants a discount on booking Experiences. When using a promo code, you as a Participant understand and agree that Besomebody reserves the right, in its sole discretion, to obtain a pre-authorization via your credit card for any Experience Fees exceeding the value of the promo code. Once Besomebody receives confirmation of your booking from the applicable Passionary, Besomebody will collect the Experience Fees exceeding the value of the promo code in accordance with these Terms and the pricing details set forth in the applicable Listing.
If, as a Participant, you use a promo code when booking an Experience and cancel within 24 hours of the start time of the applicable Experience, you will be charged the FULL Experience Fee. This is the case even if the promo code enabled you to book a "free" Experience (i.e. $0 charge to book). Additionally, an indication of the cancellation will be made public on the Participant’s Reviews. Cancellation fees are in place to protect the integrity of the platform, and ensure the safety and standards of passionaries and participants.
If, as a Participant, you use a promo code when booking an Experience and are a NO SHOW to the Experience, you will be charged the FULL Experience Fee. Additionally, an indication of the cancellation will be made public on the Participant’s Reviews. NO SHOW penalties are in place to protect the integrity of the platform, and ensure the safety and standards of passionaries and participants.
Once an Experience is confirmed, Participants may cancel the Experience with no cancellation fees up to 24 hours prior to the start time of the applicable Experience. No additional fees will be collected; however, an indication of the number of cancellations any Participant has made on the Application or Site will be made public under the Reviews of each Participant. If the Participant cancels within 24 hours of the start time of the applicable Experience, the Participant will be charged the full Experience Fee. Additionally, an indication of the cancellation will be made public on the Participant’s Reviews.
If a Passionary cancels a confirmed booking made via the Site, Services, and Application prior to 24 hours of the start time of the applicable Experience, (i) Besomebody will refund the Experience Fees for such booking to the applicable Participant within a commercially reasonable time of the cancellation and (ii) the Participant will receive an email or other communication from Besomebody containing alternative Listings and other related information. If the Participant requests a booking from one of the alternative Listings and the Passionary associated with such alternative Listing confirms the Participant’s requested booking, then the Participant agrees to pay Besomebody the Experience Fees relating to the confirmed booking for the Experience in the alternative Listing, in accordance with these Terms. If a Passionary cancelled a confirmed booking and you, as a Participant, have not received an email or other communication from Besomebody, please contact Besomebody at email@example.com. An indication of the cancellation will be made public on the Passionary’s Reviews.
If, as a Passionary, you cancel the Experience within 24 hours of the start time of the Experience, including by failure to appear for the Experience, you will be charged a cancellation fee of 25% of the amount of the booking for that Experience. This fee will be deducted from the credit card you have associated with your Passionary account. Further, an indication of the cancellation will be made public on the Passionary’s Reviews.
Besomebody may also apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a repeated cancellation fee (to be withheld from your future payouts) or terminating your account.
In certain circumstances, Besomebody may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the Application, Site and Services. This may be for reasons set forth in Besomebody’s Extenuating Circumstances policy or for any other reason. Besomebody may also determine, in its sole discretion, to refund to the Participant part or all of the amounts charged to the Participant in accordance with the Participant Refund Policy. You agree that Besomebody and the relevant Participant or Passionary will not have any liability for such cancellations or refunds.
Besomebody has the sole discretion to amend or revise this Cancellation Policy at any time. Any amendments will be clearly communicated to all Passionaries, and will be updated within these Terms.
Besomebody may, in its sole discretion, round up or round down amounts that are payable from or to Participants or Passionaries to the nearest whole functional base unit in which the currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, Besomebody will round up an amount of $101.50 to $102.00, and $101.49 to $101.00.
Some currencies are denominated in large numbers. In those cases, Besomebody may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Besomebody to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
Some Passionaries may pledge to donate a portion of the funds they receive from confirmed bookings made via the Application, Site and Services to a particular cause or charity. We do not take any responsibility or liability for whether the Passionary does in fact make the donation he or she pledged to make. In such cases, the Passionary in question is responsible for his or her own compliance with all laws and regulations applicable to such pledges and/or fund-raising.
Tax regulations may require us to collect appropriate tax information from our Passionaries, or to withhold taxes from payouts to Passionaries, or both. For instance, IRS regulations stipulate that we must collect an IRS Form W-9 from our US Passionaries, and an appropriate IRS Form W-8 (e.g. Form W-8BEN) from non-US Passionaries with at least one Listing in the US. You as a Passionary are solely responsible for keeping the information in your tax forms current, complete and accurate. If you as a Passionary fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold payments to you (e.g. where you are a US Passionary and you fail to provide us with a completed IRS Form W-9), we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both.
You as a Passionary understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Besomebody cannot and does not offer Tax-related advice to any Users.
Where applicable, or based upon request from a Passionary, Besomebody may issue a valid VAT invoice to such Passionary.
You understand and acknowledge that appropriate governmental agencies, departments or authorities (the “Tax Authority”) where your Experience is conducted may require Taxes to be collected by Passionaries from Participants on the amount paid for the Experiences, and to be remitted to the respective Tax Authority.
In certain jurisdictions, Besomebody may decide in its sole discretion to facilitate collection and remittance of Taxes from Participants on behalf of and in-lieu of Passionaries, if such tax jurisdiction asserts Besomebody or Passionaries have a tax collection and remittance obligation. In any jurisdiction in which we decide to facilitate collection and remittance of Taxes, whether you are a Participant or Passionary you hereby instruct and authorize Besomebody to collect Taxes from Participants on behalf of and in lieu of Passionaries at the time Experience Fees are collected, and to remit such Taxes to the Tax Authority. You also consent and agree to provide Besomebody with any and all information Besomebody may require in facilitating the collection and remittance of Taxes. When Besomebody facilitates collection or remittance of Taxes in a jurisdiction for the first time, Besomebody will provide notice to existing Passionaries with Listings for Experiences in such jurisdictions. The amount of Taxes collected and remitted through facilitation by Besomebody, if any, will be visible to and separately stated to both Participants and Passionaries on their respective transaction documents. Participants and Passionaries agree that in any jurisdiction where Besomebody facilitates collection and remittance of Taxes on behalf of and lieu of Passionaries, such Passionaries are not permitted to also collect and/or remit such taxes on any portion of the Experience Fees. Passionaries and Participants acknowledge and agree that in some jurisdictions, Besomebody may not be able to facilitate collection and remittance of Taxes. In any jurisdiction in which we have not provided notice of, or are not facilitating collection and remittance of Taxes to the Tax Authority in your jurisdiction, Passionaries and Participants remain solely responsible and liable for the collection and/or remittance of any and all Taxes that may apply to Experiences. For any jurisdiction in which we facilitate collection and remittance of Taxes, Passionaries and Participants expressly grant us permission to transfer data and other information relating to Taxes, if any, collected and remitted relating to your transactions.
Whether you are a Participant of Passionary, you agree that any claim or cause of action relating to collection and remittance of Taxes shall not extend to any supplier or vendor that may be used by Besomebody in connection with collection and remittance of Taxes, if any. Participants and Passionaries agree that we may seek additional amounts from you in the event that the Taxes collected or remitted are insufficient to fully discharge your obligations to the Tax Authority, and agree that your sole remedy for Taxes collected is a refund of Taxes collected by Besomebody from the applicable Tax Authority in accordance with applicable procedures set by that Tax Authority.
7. User Conduct
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Application, Site, Services and Collective Content. In connection with your use of the Application, Site, Services and Collective Content, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
- use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Collective Content;
- use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
- copy, store or otherwise access any information contained on the Site, Application, Services or Collective Content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- interfere with or damage our Application, Site or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use our Application, Site or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use our Site, Application, Services or Collective Content in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to lodging in a private residence;
- “stalk” or harass any other user of our Site, Application, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as a Participant or Passionary;
- register for more than one Besomebody Account or register for an Besomebody Account on behalf of an individual other than yourself;
- unless Besomebody explicitly permits otherwise, request or book any Experience if you will not actually be engaging in the Experience yourself;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information from or otherwise interact with the Site, Application, Services or Collective Content;
- use the Site, Application, Services or Collective Content to find a Passionary or Participant and then complete a booking of an Experience independent of the Application, Site or Services, in order to circumvent the obligation to pay any Experience Fees related to Besomebody’s provision of the Services or for any other reasons;
- as a Passionary, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honor;
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- systematically retrieve data or other content from our Application, Site or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- use, display, mirror or frame the Site, Application, Services or Collective Content, or any individual element within the Site, Application, Services or Collective Content, Besomebody’s name, any Besomebody trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Application, Site or Services, without Besomebody’s express written consent;
- access, tamper with, or use non-public areas of the Application, Site or Services, Besomebody’s computer systems, or the technical delivery systems of Besomebody’s providers;
- attempt to probe, scan, or test the vulnerability of any Besomebody system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Besomebody or any of Besomebody’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
Besomebody may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Besomebody or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Besomebody , its users, or members of the public. You acknowledge that Besomebody has no obligation to monitor your access to or use of the Application, Site, Services or Collective Content or to review or edit any User Content, but has the right to do so for the purpose of operating and improving the Application, Site and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Besomebody reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Besomebody, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Application, Site or Services.
The Application, Site, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Application, Site, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of Besomebody and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application, Site, Services, or Collective Content.
10. Application License
Subject to your compliance with these Terms, Besomebody grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Besomebody reserves all rights in the Application not expressly granted to you by these Terms.
11. Besomebody Content and User Content License
Subject to your compliance with the terms and conditions of these Terms, Besomebody grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Besomebody Content solely for your personal and non-commercial purposes and (ii) access and view any User Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Besomebody or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Application, Site and Services, you hereby grant to Besomebody a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote or market the Application, Site and Services. This means that Besomebody may, in its sole discretion, continue to use your content, including reviews, ratings, and photographs, even after your account has been deleted. Besomebody does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Application, Site and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Application, Site and Services or you have all rights, licenses, consents and releases that are necessary to grant to Besomebody the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Besomebody’s use of the User Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Application, Site and Services may contain links to third-party websites or resources. You acknowledge and agree that Besomebody is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Besomebody of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
13. Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Besomebody used herein are trademarks or registered trademarks of Besomebody. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Application, Site and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org or messaging us through the Settings section of the Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of Besomebody and you hereby irrevocably assign to Besomebody and agree to irrevocably assign to Besomebody all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Besomebody’s request and expense, you will execute documents and take such further acts as Besomebody may reasonably request to assist Besomebody to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
15. DMCA/Copyright Policy
Besomebody respects the intellectual property rights of others and expects its users to do the same. It is our policy, in appropriate circumstances and at its discretion, to disable and/or terminate the Accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at www.copyright.gov/legislation/dmca.pdf, Besomebody will respond expeditiously to claims of copyright infringement committed using the Site that are reported to our Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to Besomebody Designated Copyright Agent. Upon receipt of the Notice as described below, Besomebody will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site.
DMCA Notice of Alleged Infringement (“Notice”)
1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material that you claim is infringing (or to be the subject of infringing Experience) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Besomebody Designated Copyright Agent:
c/o Besomebody, Inc.
14323 Belle River Ln.
Houston, TX 77077
16. Suspension, Termination and Besomebody Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Besomebody Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Besomebody Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Application, Services, your Besomebody Account, your User Content, or receive assistance from Besomebody Customer Service, (b) any pending or accepted future bookings as either Passionary or Participant will be immediately terminated, (c) we may communicate to your Participants or Passionaries that a potential or confirmed booking has been cancelled, (d) we may refund your Participants in full for any and all confirmed reservations, irrespective of preexisting cancellation policies, (e) we may contact your Participants to inform them about potential alternate Experiences with other Passionaries that may be available on the Application, Site and Services, and (f) you will not be entitled to any compensation for bookings (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your Besomebody Account. You may cancel your Besomebody Account at any time by sending an email to email@example.com. Please note that if your Besomebody Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Application, Site and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE APPLICATION, SITE, SERVICES OR COLLECTIVE CONTENT AND PARTICIPATE IN THE REFERRAL PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT BESOMEBODY DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USER, INCLUDING, BUT NOT LIMITED TO, PARTICIPANTS AND PASSIONARIES, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE APPLICATION, SITE, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, BESOMEBODY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BESOMEBODY MAKES NO WARRANTY THAT THE APPLICATION, SITE, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY EXPERIENCES, [OR THE REFERRAL PROGRAM] WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BESOMEBODY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, EXPERIENCES, [YOUR ACCRUAL OF BESOMEBODY EXPERIENCE CREDITS,] THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE APPLICATION, SITE, SERVICES OR REFERRAL PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BESOMEBODY OR THROUGH THE APPLICATION, SITE, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APPLICATION, SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APPLICATION, SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY PASSIONARIES OR PARTICIPANTS. YOU UNDERSTAND THAT BESOMEBODY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE APPLICATION, SITE OR SERVICES OR TO REVIEW OR VISIT ANY EXPERIENCES. BESOMEBODY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE APPLICATION, SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE APPLICATION, SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APPLICATION, SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APPLICATION, SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, PARTICIPANTS AND PASSIONARIES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY BESOMEBODY. NOTWITHSTANDING BESOMEBODY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE PASSIONARIES FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM PARTICIPANTS ON BEHALF OF THE PASSIONARIES, BESOMEBODY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY PARTICIPANT OR OTHER THIRD PARTY.
18. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY EXPERIENCES VIA THE APPLICATION, SITE AND SERVICES, YOUR PARTICIPATION IN THE REFERRAL PROGRAM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF BESOMEBODY WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER BESOMEBODY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APPLICATION, SITE, SERVICES, COLLECTIVE CONTENT OR THE REFERRAL PROGRAM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE APPLICATION, SITE, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APPLICATION, SITE, SERVICES, OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM OR FROM YOUR LISTING OR BOOKING OF ANY EXPERIENCE VIA THE APPLICATION, SITE AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BESOMEBODY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE PASSIONARIES PURSUANT TO THESE TERMS, IN NO EVENT WILL BESOMEBODY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE APPLICATION, SITE AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY EXPERIENCE VIA THE APPLICATION, SITE AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE APPLICATION, SITE, SERVICES, OR COLLECTIVE CONTENT OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM AND IN CONNECTION WITH ANY EXPERIENCE OR INTERACTIONS WITH ANY OTHER USERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE APPLICATION, SITE AND SERVICES AS A PARTICIPANT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A PASSIONARY, THE AMOUNTS PAID BY BESOMEBODY TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR FIFTY U.S. DOLLARS (US $50), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BESOMEBODY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Besomebody and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your User Content; (c) your (i) interaction with any User, (ii) booking of an Experience, or (iii) creation of a Listing; (d) the participation in an Experience by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of participation in an Experience[; and (e) your participation in the Referral Program or your accrual of any Besomebody Experience Credits].
20. Export Control and Restricted Countries
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Application, Site and Services, you represent and warrant that (i) neither you nor your listed Experience is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Application, Site and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Besomebody does not permit Listings associated with certain countries due to U.S. embargo restrictions.
21. Accessing and Downloading the Application from iTunes
The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
- You acknowledge and agree that (i) these Terms are concluded between you and Besomebody only, and not Apple, and (ii) Besomebody, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Besomebody and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Besomebody.
- You and Besomebody acknowledge that, as between Besomebody and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Besomebody acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Besomebody and Apple, Besomebody, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- You and Besomebody acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
If you have an Experience with or Passionary or Participant who you feel is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Besomebody by contacting us with your police station and report number at firstname.lastname@example.org; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
23. GEOGRAPHIC RESTRICTIONS
The owner of the Application and Site is based in the state of Massachusetts in the United States. We provide the Application, Site and Services for use by persons located anywhere in the world (exclusive of U.S. embargo countries). Access to the Application, Site and Services may not be legal by certain persons or in certain countries. If you access the Application, Site and Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
24. Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Besomebody and you regarding the Application, Site, Services, Collective Content, [Referral Program,] and any bookings or Listings of Experiences made via the Application, Site and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Besomebody and you regarding bookings or listings of Experiences, the Application, Site, Services, Collective Content and Referral Program.
You may not assign or transfer these Terms, by operation of law or otherwise, without Besomebody’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Besomebody may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Besomebody (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
27. Dispute Resolution
These Terms and any action related thereto will be governed by the laws of the State of Massachusetts without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Besomebody agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in Austin, Texas and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Besomebody are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Besomebody otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Besomebody otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Besomebody submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Besomebody will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Besomebody will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
The failure of Besomebody to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Besomebody. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
29. Contacting Besomebody
If you have any questions about these Terms or any App Store Sourced Application, please contact Besomebody at email@example.com.
30. Besomebody Content Submission Agreement
Besomebody is excited you are interested in sharing your content with us. Please read carefully the terms and conditions that follow. This Besomebody Content Submission Agreement (the “Agreement”) is a binding agreement between you (“You”) and Besomebody, Inc., a Massachusetts Corporation (“Besomebody”).
BY UPLOADING YOUR CONTENT, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT UPLOAD YOUR CONTENT TO BESOMEBODY.
You represent and warrant that You own or have the right to license to Besomebody pursuant to the terms herein all the video or audio visual content, footage and photographs filmed, captured and/or recorded, including any rights to the music contained therein, including the right to exploit any master recordings and underlying musical compositions as synchronized to the UGC and the public performance rights for such UGC, and submitted by You to Besomebody through any delivery means prescribed by Besomebody (together, the “UGC”).
Besomebody wishes to license and You desire to grant Besomebody a license to include, exhibit, display, reproduce or distribute the UGC for any and all purposes, including commercial purposes, and including but not limited to the marketing, promoting and advertising of the Besomebody brand, products and services, testing of Besomebody’s technologies, monetization of content through advertising, subscription, licensing and other means. Such a license further includes, among other things, the right for Besomebody to incorporate the UGC in video or audio visual content, text, graphics, artwork, photographs, templates, and other content or materials created by or on behalf of Besomebody.
This Agreement also governs Besomebody’s use of the name, nickname, likeness, rights of publicity, voice, live or recorded performance, autograph, photographs and biographical information of You or any third parties (“Appearances”) as included in the UGC. You represent and warrant that You have obtained the appropriate licenses, permissions, and/or releases from all people that recognizably appear in the Content, including the real names, nicknames, likenesses, voices, live or recorded performances, autographs, photographs and biographical information of such third party individuals, and the owner of any music, images, video, audio, photos, text, or other material embedded within the UGC. If your UGC contains photographs or digital or video images that depict a child that is under the age of majority in their state of residence, You represent that You have written permission from the minor’s parent or guardian to provide the photo, digital, or video image for commercial use.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is acknowledged, the parties agree as follows:
- LICENSE GRANT. Submitting UGC means that You hereby grant to Besomebody, with a right to sublicense for commercial use, a perpetual, worldwide, unlimited, irrevocable, transferable, assignable, royalty-free, fully-paid license for Besomebody to use that UGC and Your Appearances or other identifying information in connection with Your UGC, and the right to record, copy, publicly perform, broadcast, exhibit, transmit, distribute create derivate works and otherwise exploit any master recordings and underlying musical compositions as synchronized to the UGC and provide the public performance rights for such UGC, for any purpose, including but not limited to any commercial advertising, in any manner or media now or later developed, including, without limitation, the rights enumerated below:
- (a) to reproduce, modify, display and prepare derivative works, publicly perform, publicly display, distribute, broadcast, transmit and otherwise use the UGC, in whole or in part, for any purpose, in any and all media now known or hereafter created, including, but not limited to, the following (collectively, the “Licensed Uses”):
- Online / Mobile: All forms of transmission over the Internet, mobile carrier networks, satellite networks or other method of connectivity (as defined below), including, without limitation, all forms of streaming technologies and downloads accessible on or through any and all websites, applications, gaming and/or media platforms, social media services and/or other offerings made available by Besomebody.
- PR / Industrial / Retail: All public relations, media outreach and/or industrial uses, including, without limitation, the exhibition, performance and other use of the Content and Appearances at retail establishments (e.g., “point-of-sale” and “point-of-purchase” displays), kiosks, trade shows, conventions, sales and/or marketing meetings and other industrial and/or promotional events;
- Print Media: The display and other use of UGC in and in connection with all forms of print media, including, without limitation, catalogues, newspaper and magazine articles, editorials, advertising and circulars, merchandise packaging and product manuals;
- Out-Of-Home / Transit / Events: The exhibition, display, performance and other use of the Content and Appearances via all forms of out-of-home advertising (including, without limitation, on billboards, “bus wrappers” and in other public places), in public or private transportation (including, without limitation, airline flights, trains, subway cars, buses, taxis, limousines and “ride-sharing” services) and at public events (including, without limitation, on electronic billboards and video displays at those public events);
- Theatrical: Theatrical exhibition (including, without limitation, as embodied in motion pictures);
- Home Video / EST: All home video formats (i.e., DVD, Blu-Ray, VHS and other fixed, transportable audiovisual media) and the “electronic sell-through” of motion pictures and television programs embodying the Content in digital download formats;
- Commercials: by means of Online Media, radio and Television in audiovisual works as commercial(s), produced by Besomebody;
- Internal Usage: internal usage for testing and system improvements by Besomebody.
- Other Uses: Any other exhibition, display, performance, communication to the public, distribution, exploitation or other use of the Content and/or Appearances not set forth above.
- (b) to the extent that You or any third party recognizably appear in the Content, to use the Appearances, in or in connection with the Content, in any and all media now known or hereafter created, including, but not limited, for the Licensed Uses for any purpose and as necessary to exercise the rights granted in these Terms. Subject to applicable laws, You waive any moral and privacy rights that You or Your licensors may have in any UGC.
- USE OF YOUR UGC. Submission of Content to Besomebody is not a guarantee that Besomebody will publish or otherwise use the Content. For clarity, as part of the Licensed Uses, Besomebody may use Your Content, in whole or in part without any further approval by You.
- OWNERSHIP. Besomebody acknowledges and agrees that You retain all right, title and interest in and to the UGC and Appearances, including all intellectual property rights, rights of publicity or privacy and moral rights therein, other than those rights granted herein. You acknowledge and agree that Besomebody shall acquire all right, title and interest in the derivative works of the UGC.
- WARRANTIES. You represent and warrant that: (i) You have all rights and licenses necessary to grant to Besomebody the rights granted in the UGC and Appearances, including but not limited to rights to synchronize any master recording and or composition used to video , images, video, audio, photos, text, or other material embedded within the UGC, and You will pay any and all third parties who may be entitled to a royalty or fee (including public performance organizations) arising from the Licensed Use of any composition or master recording embedded within the UGC; (ii) to the extent any Third-Parties are visible in the UGC, You have obtained express consent from the Third-Parties to submit their likeness; (iii) Besomebody’s use or sublicense of the UGC, Appearances, or Third-Party Materials as contemplated by this Agreement will not infringe, misappropriate or violate a third party’s intellectual property rights, rights of publicity or privacy, moral rights or any applicable law or regulation; (iv) Your agreement to the terms and conditions of this Agreement will not violate or conflict with any obligations owed by You to a third party; and (v) you will comply with all laws, rules and regulations applicable to this Agreement.
- INDEMNITY. You will indemnify, defend and hold Besomebody harmless from and against any and all claims, demands, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising from or related to: (a) breach of any of Your representations and warranties in this Agreement; (b) any third party claim that the UGC or Appearances, or Besomebody’s use thereof, infringe, misappropriate or violate such third party’s intellectual property or other third party rights and (c) any third party claim that is based on any act or omission of You that results in personal injury, death, property damage or the violation of any law, ordinance or regulation.
- LIMITATION OF LIABILITY. IN NO EVENT WILL BESOMEBODY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE THEORY OF LIABILITY, ARISING FROM OR RELATED TO THIS AGREEMENT OR BESOMEBODY’S USE OF THE CONTENT AND APPEARANCES, EVEN IF BESOMEBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BESOMEBODY’S TOTAL, CUMULATIVE LIABILITY TO YOU ARISING FROM OR IN RELATION TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY BESOMEBODY TO YOU PURSUANT TO THIS AGREEMENT. Notwithstanding the provisions of this Section 8, nothing in this Agreement excludes or limits or purports to exclude or limit the liability of either party for: (a) death or personal injury resulting from negligence; (b) any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party; or (c) for any liability which cannot be excluded or limited by applicable law.
- GENERAL. This Agreement will be governed by and construed in accordance with the laws of the State of Massachusetts, excluding that body of law known as conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Massachusetts and the parties irrevocably consent to the personal jurisdiction and venue therein. You may not assign or transfer this Agreement without Besomebody’s prior written consent, and any attempt to do so will be void. Besomebody may freely assign this Agreement. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of this Agreement will be effective only if in writing and signed by both parties. If any provision of this Agreement is held to be unenforceable or invalid by a court of competent jurisdiction, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement of the parties regarding its subject matter, and supersedes all prior understandings and agreements between the parties regarding its subject matter. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, or agency between the parties.