TERMS & CONDITIONS
Last updated: July 18, 2022
Welcome to The Rosemary. The Rosemary offer fully furnished lofts, houses, event spaces, film and photoshoot locations (the "Guest Units") in newly remodeled properties (each, a "Property") on a short-term basis for guests to stay ("Guest" or "you"). The website at www.therosemary.com and any other websites relating to The Rosemary or the Guest Units (the "Sites") and the various other related services, features, functions, software, applications, websites and networks (together with the Guest Units and the Site, collectively, the "The Rosemary Services") are provided and operated, and are being made available to you, the other Guests and the other users of any of The Rosemary Services (collectively, "Users") by The Rosemary" or "us" or "we"). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.
IMPORTANT! THESE TERMS OF SERVICE (together with the Privacy Policy, Policies, Building Rules (each defined below) and any modifications or additions thereto, these "TERMS") GOVERN YOUR MAKING A RESERVATION AND OCCUPANCY OF A GUEST UNIT AND THE USE OF THE SITE AND THE OTHER ROSEMARY SERVICES. BY CLICKING "I AGREE", MAKING A RESERVATION OR OCCUPYING OR ENTERING INTO A LICENSE FOR A GUEST UNIT OR DOWNLOADING, USING, CONFIGURING OR ACCESSING THE SITE OR ANY OF THE OTHER ROSEMARY SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THESE TERMS, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THESE TERMS OF SERVICE, AND ARE DOING SO, (B) YOU CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU SHALL BE BOUND BY THESE TERMS OF SERVICE AND THE ROSEMARY’S PRIVACY POLICY (HTTPS://WWW.THEROSEMARY.COM/PRIVACY) (THE "PRIVACY POLICY"), the BUILDING RULES AND ALL MODIFICATIONS AND ADDITIONS TO ANY OF THE FOREGOING. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR THE PRIVACY POLICY, DO NOT MAKE A RESERVATION, OCCUPY OR LICENSE A GUEST UNIT OR USE ANY OF THE OTHER ROSEMARY SERVICES.
These Terms contain an Arbitration provision which will, with limited exception, require you to submit disputes you have against The Rosemary to binding and final arbitration. You will only be permitted to pursue claims against The Rosemary on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Eligibility.
To make a reservation and to license a Guest Unit or to access and use the Site and the other The Rosemary Services, you must be at least 18 years of age. By making a reservation, or licensing or occupying a Guest Unit or by accessing or using the Site, clicking the "I Agree" button or by downloading, installing or otherwise accessing or using any of The Rosemary Services, you represent that:
You satisfy the eligibility requirements and have not been previously suspended or removed from a Guest Unit or any of the other The Rosemary Services or prohibited from making a reservation for, or licensing or occupying, any Guest Unit or accessing and using the Site;
You confirm that you are of legal age to form a binding contract with The Rosemary; and
You will comply with these terms and all applicable local, state, national and international laws, rules and regulations.
2. Privacy.
Your privacy is important to The Rosemary. Our goal is to make the Guest Units, the Site and the other The Rosemary Services as good, useful and rewarding for you as possible. In order to do that, The Rosemary may collect and process information from you when you make a reservation for, or license, a Guest Unit or use the Site or any of the other The Rosemary Services. The Rosemary will collect certain personally identifiable information from you as set forth in more detail in our Privacy Policy. By making a reservation for, licensing or occupying, any Guest Units or accessing and using the Site or the other The Rosemary Services, you agree that The Rosemary may collect, use and disclose, as set forth in the Privacy Policy, the information you provide during the reservation process or the licensing of any Guest Unit or your access to or use of the Site or any of the other The Rosemary Services, and in some cases information that is provided by or through any of The Rosemary Services.
3. License Grant; Unauthorized Use.
3.1 LICENSE GRANT.
Subject to your compliance with these Terms, The Rosemary hereby grants to you a limited, non-exclusive, non-transferable, freely revocable license to access and use the Site and the other The Rosemary Services to the extent of, and in accordance with, these Terms. Upon check-in to a Property, The Rosemary will require you to execute an acceptance of these Terms in a form determined by The Rosemary, however even if you do not execute such acceptance, you nonetheless agree to be bound hereby.
3.2 PREVENTION OF UNAUTHORIZED USE.
The Rosemary reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized reservations, licensing or occupancy of the Guest Units or use of the Site or any of the other The Rosemary Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
4. Guest Units.
4.1 GENERAL
(a) It is Guest’s responsibility to read and be familiar with all of these Terms. Compliance with these Terms by you, your guests and/or visitors will make your stay easier and more enjoyable. Failure to observe any of these Terms may result in the immediate termination of your stay without refund, a suspension or ban from staying at The Rosemary Properties and all other remedies which The Rosemary may be permitted to exercise at law and equity. Prior to check-in at a Property, Guests may be provided with arrival instructions. It is a Guests" responsibility to comply with such instructions and the terms of those instructions are incorporated by reference as if they had been fully set forth herein.
(b) Access and use of parking facilities and any common areas of a Property are also subject to, and governed by, these Terms
(c) All reservations must be confirmed by The Rosemary to be binding. If you have not received a confirmation after making a reservation, please contact us at info@therosemary.com.
(d) On rare occasions, a Guest Unit will become unavailable in situations beyond the control of The Rosemary including, without limitation, a major appliance failure, utilities failure or damage. Under these circumstances, The Rosemary will make every effort to accommodate affected Guests in another The Rosemary unit however cannot guarantee that any Guest Unit will be available. If a Guest prefers to cancel with The Rosemary altogether and seek other accommodations, Guest shall promptly notify The Rosemary and The Rosemary shall issue a full refund for any unspent nights. This is Guest’s sole remedy if a Guest Unit becomes unavailable.
(e) Each Property also has its own building rules (e.g., bar hours, visitor hours, etc.) (each, "Building Rules") that The Rosemary will make available to each Guest at The Rosemary Office, however it is the responsibility of each Guest to make themselves familiar with the Building Rules. The Building Rules include any signage posted throughout a Property and any common areas or amenities. You, your guests and visitors shall fully comply with these building rules. If you have any questions, please email us at info@therosemary.com
(f) Different Properties may have different amenities and features (e.g., bar, gym, parking, etc.) (the "Amenities"). The actual Amenities at a Property will be identified on the Site however are subject to change in accordance with these Terms.
On occasion, some of the Amenities at a Property may not be available for a variety of reasons, including maintenance, private events, etc. The Rosemary is not responsible if any of the Amenities are not available.
In addition, certain Amenities may only be available to Premium Guests and Guests who have stayed at our Properties frequently. If you have any questions, check with The Rosemary Office on the Property.
(g) The Guest Units and the Amenities are intended only for your personal use and the use of your guests. GUEST EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE GUEST UNIT IS FOR TRANSIENT OCCUPANCY ONLY, AND THAT GUEST DOES NOT INTEND TO, AND WILL NOT, ASSERT A CLAIM THAT THE GUEST UNIT IS A RESIDENCE OR HOUSEHOLD OR MAKE THE GUEST UNIT A RESIDENCE OR HOUSEHOLD. GUEST AGREES THAT, REGARDLES OF THEIR LENGTH OF STAY AT THE PROPERTY, GUEST IS NOT A TENANT, RENTER OR ANY OTHER CLASSIFICATION WOULD PERMIT GUEST TO AVAIL ITESELF OF ANY LAWS OR REGULATIONS APPLICABLE TO RESIDENTIAL OR COMMERCIAL TENANTS AND GUEST AGREES NOT TO MAKE AND HEREBY WAIVES ANY CLAIM UNDER SUCH LAWS OR REGULATIONS. GUEST AGREES TO VACATE A GUEST UNIT AT THE END OF ITS RESERVED STAY OR WHEN OTHERWISE REQUIRED BY THE ROSEMARY PURSUANT TO THESE TERMS AND AGREES THAT THE ROSEMARY SHALL NOT BE REQUIRED TO UNDERTAKE ANY JUDICIAL PROCESS TO REMOVE GUEST FROM A GUEST UNIT OR A PROPERTY.
(h) GUEST AGREES THAT THERE SHALL BE NO SMOKING INSIDE THE GUEST UNIT OR ANYWHERE ON THE PROPERTY. IF THERE IS SMOKING IN THE GUEST UNIT THERE WILL BE A MINIMUM $150 CLEANING CHARGE FOR UPHOLSTERY, CURTAINS AND RUGS AND ANY ADDITIONAL COSTS TO REMEDY THE SITUATION.
(i) Guest shall maintain the Guest Unit in a good and clean condition, and use the Guest Unit and the Property only in a careful and lawful manner. Guests shall promptly dispose of garbage and recyclables in the trash chutes located in the trash rooms in every hallway, unless otherwise directed by the Building Rules.
Guest shall be responsible for any and all damage to the Guest Unit and the contents thereof, including, without limitation appliances, furniture, fixtures, etc. Guest authorizes The Rosemary to charge the Guest"s credit card on file for the cost to repair any such damage, replace the damaged item(s) and any other costs incurred by The Rosemary in doing so.
(j) Guest agrees to be a good neighbor by respecting the rights of the surrounding occupants to a pleasant, safe and peaceful environment. Guest shall not create excessive noise or other situations likely to disturb or annoy the surrounding neighbors. Guest acknowledges that The Rosemary may monitor the noise level of the Guest Unit electronically or otherwise. Events or parties in a Guest Unit or in any other space in the Property are strictly prohibited.
(k) THE ROSEMARY SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO ANY CASH, VALUABLES OR OTHER GOODS BROUGHT ONTO THE PROPERTY OR INTO THE GUEST UNIT BY GUEST OR LEFT IN YOUR CAR WHILE IN THE PARKING FACILITY OF THE PROPERTY. IF GUEST CHECKS OUT OF THE GUEST UNIT BUT FORGETS TO RECLAIM ANY SUCH ITEMS OR LEAVES ANY ITEMS IN THE GUEST UNIT AND SUCH ITEMS ARE RECOVERED BY THE ROSEMARY, THE ITEMS WILL BE DISPOSED OF UNLESS CLAIMED BY THE GUEST. HOWEVER, IN THE ABSENCE OF INSTRUCTIONS FROM GUEST, OR IF THE ROSEMARY IS UNABLE TO DETERMINE THE OWNER OF SUCH ITEMS, THE ROSEMARY SHALL STORE THE ITEMS FOR UP TO THREE (3) DAYS (INCLUDING THE DAY ON WHICH THESE ITEMS ARE FOUND) AND THEN EITHER DESTROY OR DONATE THEM OR OTHERWISE DISPOSE OF THEM IN ANY WAY DETERMINED BY THE ROSEMARY IN ITS SOLE DISCRETION. The Rosemary shall not be liable for any failure to deliver or dispose of such items in accordance with this paragraph.
(l) The Guest Unit and the Property shall not be used to engage in any unlawful activity. Any such activity by any Guest shall be grounds for immediate termination of the Guest license and occupancy for such Guest Unit, and all Guests will be required to vacate the Guest Unit and the Property immediately without refund, may be subject to a ban or suspension from The Rosemary Properties and any other remedies to which The Rosemary may be entitled at law or equity. While the privacy of its Guests is important to The Rosemary, The Rosemary will endeavor to comply with the lawful order of any law enforcement official and a Guest Unit may be subject to entry, search or seizure in accordance with applicable law, including, without limitation, in the case of an emergency or unlawful Guest activity.
4.2 CHECK-IN AND CHECK-OUT; EXTENDING YOUR STAY; DEPARTURES.
(a) The check-in time on the first day of your stay and the check-out time on the last day of your stay shall be provided to you upon completion of your reservation or request. All Guests shall depart on time. A delayed check-out interrupts the cleaning schedule and a fee may be charged.
(b) All Guests and guests of Guests over 18 must have a valid driver"s license and shall present them at check-in or at the request of The Rosemary or the owner or property manager of any Property.
(c) If Guest desires to extend their stay, Guest shall contact The Rosemary Office on the Property at the number provided upon check-in no less than 24 hours prior to their scheduled departure. The Rosemary cannot guarantee that it will be possible to extend a stay. Any extension of your stay must be confirmed by t The Rosemary Office at the Property. Failure to vacate the Guest Unit as scheduled may incur charges equal to double the base nightly Unit Fee rate. Please refer to the Fee Schedule.
(d) Guests shall follow the departure procedures specified by The Rosemary. Prior to check-out, Guests shall load, but not run, the dishwasher with all dirty dishes. The Guest Unit shall be secured by closing all doors and windows. Upon final departure, the room key/guest pass card shall be returned to the The Rosemary Office on the Property. Failure to return the room key/guest pass card will be subject to our then-current lost room key/guest pass card fee.
4.3 ADDITIONAL GUESTS; PETS.
(a) Guest shall not allow any additional persons to reside or sleep over at the Guest Unit other than the specific adults and children specifically identified in the reservation (the "Registered Guests") and other persons expressly allowed in the Guest Unit by The Rosemary in its sole discretion. In any case, no more additional persons in excess of the number of Registered Guests will be allowed in any Guest Unit (e.g., if the Guest Unit has a queen bed that sleeps two and a pull-out sofa that sleeps two, then the maximum number of persons that are permitted in that Guest Unit at any time is four).
All guests of the Guest must be accounted for in your reservation details. Visitors are not permitted without prior authorization by The Rosemary.
(b) Pet dogs (no cats) are welcome at select The Rosemary locations subject to the following guidelines and any other more restrictive guidelines set forth in the Building Rules which shall control:
You must book a pet friendly unit and indicate that you are bringing a pet prior to arrival
You must pay a one-time pet fee of $75 per pet; a maximum of 2 pets per Guest Unit
Pets must be kept with Guest at all times
Pets must be house trained
Dogs must be non-aggressive
Dogs can be any size and do not need to meet certain weight requirements
All pets must be approved in advance by The Rosemary prior to arrival
If you arrive at a Property with your pet without having received prior approval, or if your pet is substantially different than described when it was approved, you may not be allowed to check-in. In this event, your reservation will be cancelled and you may still be charged for your stay or a portion thereof.
Guests who bring pets are subject to our then current pet cleaning fee in addition to any other cleaning fees. Additional fees will be assessed for any damage to the Guest Unit or the Property, including without limitation, any furniture, or damage caused by or cleaning necessitated by "accidents."
4.4. ADDITIONAL SERVICES
(a) The Rosemary provides complimentary (a) TV service and (b) WIFI throughout the Guest Unit. Guest shall promptly notify The Rosemary Office on the Property if there are any problems with the TV or the WiFi. The Rosemary staff shall attempt to remedy any disruption in service at the earliest opportunity. There shall be no refund for outages, content or lack thereof, lack of knowledge or personal preferences with regard to the TV or WiFi service.
(b) Subject to advance reservation and availability, The Rosemary provides complementary portable baby play-areas and high chairs, however The Rosemary makes no representation as to the safety or efficacy of any baby products provided and Guests assume all responsibility for the safe use thereof, including using the same in accordance with any manufacturer"s instructions.
(c) Some Properties have parking for Guests. Even if the Property has parking, it may not be free and Guest agrees to pay The Rosemary "s fee therefor. If Guest uses the Property"s parking facilities (if applicable), Guest understands that The Rosemary is merely making a parking space available for Guest"s use and The Rosemary shall have no responsibility or liability for Guest"s vehicle, including any damage to the vehicle or the loss of any property kept in the vehicle. Guests should not leave valuables in their vehicles.
4.5 ACCESS AND INSPECTION
(a) Guest shall allow The Rosemary to access the Guest Unit for purposes of cleaning, maintenance, repairs, and improvements as well as in the case of emergency or violation or suspected violation of these Terms.
(b) The Rosemary has the right to inspect the Guest Unit without prior notice to enforce these Terms. The Rosemary may terminate your right to stay for breach of these Terms in its sole discretion. Upon termination of your stay for breach, you will promptly vacate the Guest Unit and you will not be entitled to any refund.
4.6 FEES AND PAYMENT.
(a) The current fees to license and occupy the Guest Units (as modified from time to time, the "Unit Fees") are available at www.therosemary.com. All other fees (e.g., pet fee, parking (if available), lost room key or guest pass card, smoking fees, etc.) (together with the Unit Fees, collectively, the "Fees") are available through the The Rosemary Office on Property.
(b) Unless otherwise agreed or provided in the booking service that Guest uses to book the Guest Unit, all Unit Fees shall be paid in advance by credit or debit card. Guest authorizes (i) The Rosemary to keep their credit or debit card number on file for additional fees or unpaid charges and (ii) to charge its credit or debit card for any such fees or charges. Reasons for additional fees include but are not limited to the following:
Outstanding balances
Broken or missing items
Smoking in the Guest Unit or Property
Damage to the Guest Unit or furnishings
Higher than customary post-stay cleaning costs
Pet cleaning fees
Parking fees
Lost room key/guest pass card fees
(c) In addition, a $250 hold (or such other amount as your are informed at check-in) will be placed on your credit card or debit card through your date of check-out and such hold may not be released for up to 72 hours from the date of check-out or longer at the discretion of your card issuer.
(d) Unless otherwise agreed by The Rosemary, all payments shall be made through a third-party payment processor directed by The Rosemary (e.g., Square, Little Hotelier Pay, etc.) (any such third-party payment processor, the "Payment Processor"). Payment processing services for the Fees, are currently being provided by Little Hotelier Pay. Little Hotelier Pay currently serves as the gateway and stores the credit card information. By agreeing to these Terms or continuing to make reservations licensing or occupying a Guest Unit, you agree to be bound by the applicable agreements of Little Hotelier and Little Hotelier Pay. As a condition of The Rosemary "s enabling payment processing services through a Payment Processor, you agree to provide The Rosemary accurate and complete information about you, your business, your credit or debit card and such other information required by the Payment Processor, and you authorize The Rosemary to share it and any relevant transaction information related to your use of the payment processing services provided by the Payment Processor.
(e) You are solely responsible for any occupancy and other taxes and fees associated with the licensure and occupancy of any Guest Unit (the "Taxes"). To the extent that any Taxes are payable by The Rosemary, you shall promptly reimburse The Rosemary the amount of any such Taxes in addition to any other amounts owing to The Rosemary.
4.7 MODICATIONS TO THE FEES AND THE GUEST UNITS.
(a) Prices. Subject to Section 9, The Rosemary may modify the Fees for the Guest Units and any other fees in connection with the Guest Units in its sole discretion.
(b) Guest Units. The Rosemary reserves the right to modify or discontinue the licensing of any of the Guest Units without prior notice.
(c) Alterations. You agree that you shall not physically modify, alter or improve the Guest Unit in any way whatsoever, including, without limitation, hanging art, adding or removing furniture or fixtures or re-arranging furniture and your credit card on file will be charged for The Rosemary "s cost to remove any modifications to the Guest Unit and restore it to its condition immediately prior to your occupancy.
4.8 CANCELLATION POLICY
Our cancellation policy may vary depending on your reservation location and the terms of the rate that is applicable to your reservation (e.g., it may be non-cancellable in whole or in part, etc.). You are responsible for reviewing the cancellation policy in your reservation confirmation.
In the event of a cancellation, it may take 72 hours or longer at the discretion of your card issuer for you to receive your refund; if any.
5. Support.
(a) The Rosemary, in cooperation with the owner and/or property manager of each Property, provides on-Property support for all Guest Units (as modified from time to time, "On-Property Support"). The contact information for your on-Property support will be provided when you check-in and is also available in your room. On-Property Support covers any problems that you encounter in your Guest Unit, including problems with your TV, WiFi, toilets, sinks, if a fire alarm starts to "chirp" or has a low battery, HVAC issues, etc.
(b) The Rosemary shall also provide technical and other support with respect to reservations, the Guest Units, the Site and the other The Rosemary Services (a) by email at info@therosemary.com or (b) by phone at 714.655.4222. Support hours are generally 9:00 am to 9:00 pm PST, 7 days a week, with the exception of company holidays and are subject to change by The Rosemary. If there is an emergency that requires immediate attention, it is your responsibility to notify the The Rosemary Office as soon as possible to prevent further damage.
7. Additional Policies.
When making a reservation, licensing or occupying any Guest Unit, or using the Site and any of the other The Rosemary Services, you will be subject to any additional posted policies, guidelines or rules applicable to the Guest Units and the use of the Site and features which may be posted from time to time (as added or modified from time to time, the "Policies"). All such Policies are hereby incorporated by reference into these Terms.
8. Respecting Other People"s Rights.
The Rosemary respects the rights of others and so should you. You therefore may not post or send Content that:
violates or infringes someone else"s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by The Rosemary in its sole discretion;
is false, misleading, untruthful or inaccurate;
includes anyone's identification documents or sensitive financial information
impersonates any person or entity, including any of The Rosemary "s employees or representatives; or
spams or solicits any Users, including any other Guest.
9. Reservation Information.
When you make a reservation to license a Guest Unit, you agree to provide current, complete and accurate information. You agree to promptly update any information that you provide, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
If you change or deactivate the email that you used to make a reservation for any Guest Unit, you must update your information within 72 hours to prevent us from sending to someone else messages intended for you.
10.Modification of these Terms and DigitalMillenium Copyright.
The Rosemary reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site or otherwise through the other The Rosemary Services. If The Rosemary updates these Terms, it will update the "last updated" date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued (a) making of a reservation, (b) licensing or occupancy of a Guest Unit or (c) use of Site, after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to these Terms materially modifies your rights or obligations, The Rosemary will make reasonable efforts to notify you of such change. The Rosemary may provide notice through a pop-up or banner within any of the The Rosemary Services, by sending an email to any address you may have used to make a reservation, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, The Rosemary may require you to provide consent by accepting the changed Terms. For all other changes, except as stated elsewhere by The Rosemary, such amended Terms or Fees will automatically be effective, replacing the previously-effective Terms or Fees. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR RESERVATIONS AND THE USE OF THE SITE AND ALL OF THE OTHER THE ROSEMARY SERVICES.
To the extent that any modifications to the Terms are not allowed under applicable laws, the current version of the Terms or Policies shall continue to apply provided that such modifications shall not be effective and only with respect to the provisions modified, the prior version of the Terms shall continue to apply.
Digital Millennium Copyright Act.
It is The Rosemary "s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. If you file a notice with our copyright agent, it must comply with the requirements set forth at 17 U.S.C. " 512(c)(3). The Rosemary reserves the right to terminate without notice any User"s right to make a reservation or access to Site and the other The Rosemary Services if that User is determined by The Rosemary to be a "repeat infringer." In addition, The Rosemary accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
11.License Grant for Content; Representations and Warranties.
11.1 LIMITED LICENSE GRANT TO WHYHOTEL.
The Site, the other The Rosemary Services or any of our social networking pages (e.g., Facebook, etc.) may now or in the future permit the submission and/or posting or linking of product testimonials, pictures, audio and video recordings, text, data, information and other input or any other content linked, posted, and/or submitted by you or other Users, in each case whether or not made available to other Users ("Content"). By uploading, providing, posting, distributing or disseminating any Content to or through the Site or any of the other The Rosemary Services or any of our social networking pages, you hereby grant to The Rosemary a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit your Content (and any copyrights, publicity, database and other proprietary rights therein), in connection with the Guest Units and the operation, maintenance and support of the Site and the other The Rosemary Services.
11.2 CONTENT USE BY OTHER USERS.
You hereby consent to the use of your Content by other Users that are authorized to access your Content in the manner contemplated by these Terms and any of the The Rosemary Services.
11.3 CONTENT AND CONFIDENTIAL INFORMATION.
You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Content and the consequences of posting or publishing any Content. By uploading and publishing your Content, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize The Rosemary and the Users to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 11 and in the manner contemplated by The Rosemary and these Terms; (2) your Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (3) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the The Rosemary Services. Violators of these third-party rights may be subject to criminal and civil liability. The Rosemary reserves all rights and remedies against any Users who violate these Terms.
11.4 CONTENT DISCLAIMER.
You understand that when reserving, licensing or occupying any Guest Unit or using the Site or any of the other The Rosemary Services you may be exposed to Content or other materials from a variety of sources, and that The Rosemary is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content and other content. You further understand and acknowledge that you may be exposed to Content and other materials that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against The Rosemary with respect thereto. The Rosemary does not endorse any Content and other material or any opinion, recommendation or advice expressed therein, and The Rosemary expressly disclaims any and all liability in connection with Content and other materials. If notified by a User or a content owner of any Content or other content or materials that allegedly do not conform to these Terms, The Rosemary may investigate the allegation and determine in its sole discretion whether to remove the Content or other content or materials, which it reserves the right to do at any time and without notice. For clarity, The Rosemary does not permit copyright infringing activities on or through any of the The Rosemary Services.
12. Prohibited Conduct.
BY MAKING A RESERVATION, LICENSING OR OCCUPYING ANY OF THE GUEST UNITS OR USING THE SITE OR ANY OF THE OTHER THE ROSEMARY SERVICES YOU AGREE NOT TO:
12.1 Decipher, decompile, disassemble, reverse engineer, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of Site or any of the other The Rosemary Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
12.2 Make a reservation or license any Guest Units for the benefit of anyone other you or your immediate family, including transferring, sublicensing, renting or re-marketing any of the Guest Units;
12.3 Provide any services to any third party using the Site or any of the other The Rosemary Services except in accordance with these Terms;
12.4 Develop or create (a) any derivative work of the Site or any of the other The Rosemary Services or (b) any service to the extent intended to compete with the Guest Units;
12.5 Reproduce (except as expressly permitted herein), modify, adapt, translate or otherwise make any changes to any of the The Rosemary Services or any part thereof;
12.6 Copy, disclose, or distribute any data available on or through the Site or any of the other The Rosemary Services, in any medium, including without limitation, by any automated or non-automated "scraping;"
12.7 Interfere with, circumvent or disable any security or other technological features or measures of any of the other The Rosemary Services or attempt to gain unauthorized access to any of the The Rosemary Services or its related systems or networks;
12.8 Make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other Users (including other Guests) of any of the The Rosemary Services (including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
12.9 Use bots or other automated methods to: access the Site or any of the other The Rosemary Services, download profiles, contacts or any other information, send or redirect messages or perform any other activities through any of the The Rosemary Services;
12.10 Use the Guest Units, the Site or any of the other The Rosemary Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment;
12.11 Engage in "framing," "mirroring," or otherwise simulating the appearance or function of any of the The Rosemary Services;
12.12 Take any action that imposes, or may impose at The Rosemary "s sole determination, an unreasonable or disproportionately large load on The Rosemary "s infrastructure;
12.13 Deep-link to the Site or any of the other The Rosemary Services without The Rosemary’s consent; or
12.14 Share or disclose information of other Users without their express consent; or
12.15 Use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments.
13. Third-Party Tools and Sites.
The Rosemary Services may include third-party tools ("Third-Party Tools") and links or references to other web sites or services ("Third-Party Sites") solely as a convenience to Users, including our travel partner sites (e.g., AirBnB, Expedia and other online travel agencies). The Rosemary does not endorse any such Third-Party Tools, Third-Party Sites or the information, materials, products, or services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the The Rosemary Services are solely between you and such advertiser. Access and use of any Third-Party Tools or Third-Party Sites, including the information, materials, products, and services on or available through such Third-Party Tools or Third-Party Sites are solely at your own risk.
14. Text Messages; Mobile and Data Charges.
The Rosemary may occasionally send text message offers and alerts. By agreeing to these Terms, you authorize The Rosemary to send text messages to your mobile device with notifications and occasional special offers.
You are responsible for any mobile and data charges that you may incur for using any of the The Rosemary Services, including text-messaging charges. If you’re unsure what those charges may be, you should ask your service provider before using the Guest Units or any of the other The Rosemary Services.
15. Termination; Terms Violations.
15.1 The Rosemary.
You agree that The Rosemary, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate your ability to make a reservation or license or occupy a Guest Unit or use of the Site or any of the other The Rosemary Services and remove and discard all or any part of your user profile, and any Content, at any time. The Rosemary may also in its sole discretion and at any time discontinue your ability to make a reservation, license or occupy a Guest Unit or providing access to the Site, or any part thereof, with or without notice. You agree that any suspension or termination of your ability to make a reservation, license or occupy a Guest Unit or access to the Site or any the other The Rosemary Services may be undertaken without prior notice, and you agree that The Rosemary will not be liable to you or any third party for any such termination. The Rosemary reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing The Rosemary to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that The Rosemary may have at law or in equity. As discussed herein, The Rosemary does not permit copyright infringing activities on the Site, the Guest Units or any of the other The Rosemary Services, and shall be permitted to terminate access to any of the The Rosemary Services, and remove all Content or other content submitted by any Users who are found to be repeat infringers. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD THE ROSEMARY HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE ROSEMARY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER WHYHOTEL OR LAW ENFORCEMENT AUTHORITIES.
15.2 YOU.
Your only remedy against The Rosemary with respect to any dissatisfaction with the Guest Units is the right to receive a refund in the sole discretion of The Rosemary.
Your only remedy against The Rosemary with respect to any dissatisfaction with (i) the Site or any of the other The Rosemary Services, (ii) any term of these Terms, (iii) any policy or practice of The Rosemary in operating the Site and the other The Rosemary Services, or (iv) any Content transmitted through the Guest Units or any of these other The Rosemary Services, is to terminate your use of all of the The Rosemary Services. You may terminate your use of the Site and the other The Rosemary Services at any time.
16. Ownership; Proprietary Rights.
The Guest Units are operated by The Rosemary, and the Site and the other The Rosemary Services are owned and operated by The Rosemary. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Guest Units, the Site and the other The Rosemary Services provided by The Rosemary (the "Materials") are Owned by The Rosemary and protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content that is provided and owned by Users, all Materials contained on any of the The Rosemary Services are the property of The Rosemary or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to The Rosemary or its affiliates and/or third-party licensors. Except as expressly authorized by The Rosemary, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. The Rosemary reserves all rights not expressly granted in these Terms.
The Rosemary shall own and have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Guest Units, the Site or any of the other The Rosemary Services.
17. Indemnification.
You agree to indemnify, save, and hold The Rosemary, its affiliated companies, members, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Guest Units, the Site any of the other The Rosemary Services or any of the Content, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. The Rosemary reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify The Rosemary, and you agree to cooperate with The Rosemary "s defense of these claims. The Rosemary will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
18. No Warranties; Disclaimers.
18.1 NO WARRANTIES.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE ROSEMARY AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE "THE ROSEMARY PARTIES") DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE GUEST UNITS, THE SITE AND THE OTHER WHYHOTEL SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE ROSEMARY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE GUEST UNITS, THE SITE OR THE OTHER THE ROSEMARY SERVICES, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE THE ROSEMARY PARTIES OR THROUGH THE GUEST UNITS, THE SITE OR THE OTHER THE ROSEMARY SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
18.2 "AS IS" AND "AS AVAILABLE" AND "WITH ALL FAULTS".
YOU EXPRESSLY AGREE THAT THE GUEST UNITS AND THE USE OF THE SITE AND ANY OF THE OTHER THE ROSEMARY SERVICES, AND ANY DATA, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD PARTY SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR ANY OF THE OTHER THE ROSEMARY SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
18.3 FORCE MAJEURE.
In no event will The Rosemary be liable or responsible to Guest, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any obligation under these Terms, when and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, the failure of any other company"s services, another company"s error or service interruption, activity from neighbors, activities around the Property such as construction, noise, road repair, or maintenance, protests, large gatherings or other interruptions of traffic and access, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of laws or any action taken by a governmental or public authority.
In the event of any failure or delay caused by a Force Majeure Event, The Rosemary shall give prompt written notice to Guest of the Force Majeure Event and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
18.4 ERRORS, INACCURACIES AND OMISSIONS.
Occasionally there may be information on the Site or other materials provided to you that contain typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site or other materials is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information on the Site or these materials, including without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Site or the Application, should be taken to indicate that all information on the Site or has been modified or updated.
18.5 ACCURACY.
EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY THE ROSEMARY, THE ROSEMARY PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE GUEST UNITS, THE SITE OR ANY OF THE OTHER WHYHOTEL SERVICES OR ANY THIRD-PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
18.6 HARM TO YOUR COMPUTER.
YOU UNDERSTAND AND AGREE THAT YOU MAKE A RESERVATION, LICENSE OR OCCUPY A GUEST UNIT OR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SITE OR ANY OF THE OTHER THE ROSEMARY SERVICES OR ANY THIRD-PARTY SITES, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH INFORMATION, MATERIAL OR DATA.
19. LIMITATION OF LIABILITY AND DAMAGES.
19.1 LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE THE ROSEMARY PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THE GUEST UNITS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE SITE, THE MATERIALS, OR CONTENT ON THE SITE OR THE OTHER WHYHOTELOR ANY OTHER INTERACTIONS WITH THE ROSEMARY, EVEN IF WHYHOTEL OR A WHYHOTEL AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE ROSEMARY"S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
19.2 LIMITATION OF DAMAGES.
IN NO EVENT WILL THE ROSEMARY PARTIES" TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, THE GUEST UNITS OR YOUR USE OF THE SITE AND THE OTHER THE ROSEMARY SERVICES, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO THE ROSEMARY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR FIFTY DOLLARS, WHICHEVER IS GREATER.
19.3 RELEASE FOR DISPUTES BETWEEN USERS.
If you have a dispute with any other Users (including any other Guests) or other third parties, you release The Rosemary and the other The Rosemary Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
19.4 THIRD PARTY SITES.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY USING ANY THIRD-PARTY TOOLS OR BY REASON OF ANY SERVICES PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN THE ROSEMARY AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE THE ROSEMARY SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITES.
19.5 BASIS OF THE BARGAIN.
YOU ACKNOWLEDGE AND AGREE THAT THE ROSEMARY HAS OFFERED THE GUEST UNITS, THE SITE AND THE OTHER THE ROSEMARY SERVICES, SET ITS FEES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE ROSEMARY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE ROSEMARY. THE ROSEMARY WOULD NOT BE ABLE TO PROVIDE THE GUEST UNITS, THE SITE OR ANY OF THE OTHER THE ROSEMARY SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
19.6 LIMITATIONS BY APPLICABLE LAW.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
20. Miscellaneous.
20.1 NOTICE.
The Rosemary may provide you with notices, including those regarding changes to these Terms and the Guest Units, by email, regular mail or postings on any of the The Rosemary Services. Notice will be deemed given twenty-four hours after the email is sent, unless The Rosemary is notified that the email address is invalid. Alternatively, The Rosemary may give you legal notice by mail to a postal address, if provided by you through any of the The Rosemary Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on any of the The Rosemary Services is deemed given 30 days following the initial posting.
20.2 WAIVER.
The failure of The Rosemary to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by The Rosemary.
20.3 DISPUTE RESOLUTION.
If a dispute arises between you and The Rosemary, the goal is to provide you with a neutral and cost-effective methods of resolving the dispute quickly. Accordingly, you and The Rosemary agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the Guest Units, the Site or any of the other The Rosemary Services (a "Dispute") will be resolved in accordance with this Section 20.3 or as The Rosemary and you otherwise agree in writing. Before resorting to these dispute methods, The Rosemary strongly encourages you to first contact The Rosemary directly to seek a resolution.
The parties hereby irrevocably and unconditionally agree that service of process in any such Dispute may be effected by mailing a copy of such process by certified mail, postage prepaid, to such party at the address provided by such party.
(a) Choice of Law. THESE TERMS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE IN WHICH THE APPLICABLE PROPERTY IS LOCATED, WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS, THE GUEST UNITS, THE SITE OR ANY OF THE OTHER THE ROSEMARY SERVICES.
(b) Arbitration and Class Action Waiver.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
(i) Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND THE ROSEMARY (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS, THE GUEST UNITS, THE SITE OR ANY OF THE OTHER THE ROSEMARY SERVICES INCLUDING WITHOUT LIMITATION, YOUR RIGHTS OF PRIVACY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S APPLICABLE RULES FOR ARBITRATION AND YOU AND THE ROSEMARY HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND THE ROSEMARY WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Any such arbitration shall be in English and be held in Washington, DC and the number of arbitrators shall be one (1). Except as otherwise required by law, the parties and the arbitrator agree to keep confidential and not disclose to third parties any information or documents obtained in connection with the arbitration process, including the resolution of the Dispute. You may bring claims only on your own behalf.
NEITHER YOU NOR THE ROSEMARY WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT TO ARBITRATE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST THE ROSEMARY INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's claims, if The Rosemary is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 20.3(b) is found not to apply to you or your claim, you and The Rosemary agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the applicable procedural rules of, the federal or the District of Columbia courts in Washington DC. Both you and The Rosemary irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, The Rosemary may bring a claim for equitable relief in any court with proper jurisdiction.
(iii) Survival. This arbitration agreement will survive the termination of your use of any of the The Rosemary Services or your relationship with The Rosemary.
(c) 30 Day Right to Opt Out. Guests have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 22.3 above by sending written notice of your decision to opt-out to The Rosemary "s contact information listed at the bottom of these Terms. The notice must be sent to The Rosemary within thirty (30) days of the earliest of your initial reservation of any Guest Unit or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Section 20.3. If you opt-out of these arbitration provisions, however, we also will not be bound by them.
(d) Improperly Filed Disputes. All claims you bring against The Rosemary must be resolved in accordance with this Section 20.3. All claims filed or brought contrary to this Section 20.3 shall be considered improperly filed. Should you file a claim contrary to this Section 20.3, The Rosemary may recover attorneys" fees and costs, provided that The Rosemary has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(e) Prevailing Party. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms, the Privacy Policy, the Guest Units or any of the other The Rosemary Services, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.
(e) LIMITATION ON TIME TO FILE CLAIMS. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE PRIVACY POLICY, THE GUEST UNITS, THE SITE OR ANY OF THE OTHER THE ROSEMARY SERVICES, ANY OTHER PRODUCT OR SERVICES, ANY CONTENT OR YOUR RELATIONSHIP WITH THE ROSEMARY MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
20.4 SEVERABILITY.
If any provision of these Terms (including the Privacy Policy or any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
20.5 ASSIGNMENT.
These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by The Rosemary without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
20.6 SURVIVAL.
Upon termination of these Terms, your use of the Site or any of the other The Rosemary Services, or your relationship with The Rosemary, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2, 4.1(l), 4.6, 10, 11, 13 and 15 - 20.
20.7 HEADINGS.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
20.8 ENTIRE AGREEMENT.
These Terms, including the Privacy Policy, the Refund Policy, the Pet Policy, the Building Rules, the Policies and all other items incorporated herein by reference are the entire agreement between you and The Rosemary relating to the subject matter herein and will not be modified except by a change to these Terms or Policies made by The Rosemary as set forth in Section 9 above or as provided in the applicable agreement.
20.9 NO AGENCY.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
20.10 GEOGRAPHIC RESTRICTIONS.
The Rosemary is based in Los Angeles, CA in the United States. The Rosemary makes no claims that the Guest Units, the Site or any of the other The Rosemary Services or any of the content is accessible or appropriate outside of the United States. Reservations and the licensing and occupancy of the Guest Units or access to the Site and the other The Rosemary Services may not be legal by certain persons or in certain countries. If you make a reservation or license a Guest Unit or access the Site or any of these other The Rosemary Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against The Rosemary with respect thereto.
20.11 DISCLOSURES.
The Guest Units, the Site and the other The Rosemary Services are offered by The Rosemary located in Southern California and email: info@therosemary.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.