Please read these terms of service carefully. The Society for Clinton Hill (“SCH,” or “we,” ) operates services including walking tours, which showcase local history and architecture (collectively, together with any other services, advertisements, features, content, or other applications offered by SCH, the “SCH Services”).
By using or purchasing a ticket to an SCH Service, you agree to be bound, for yourself and any third person(s) whose participation in an SCH Service, including but not limited to walking tours, your agreement to these Terms of Service enables, by this agreement (the “Agreement”).
1. Assumption of Risk: You agree that you know and comprehend the nature, extent, and scope of the risk(s) involve in participating in SCH Services, including but not limited to walking tours, as the activities in such walks are described in SCH’s promotional literature and products, and that some dangers cannot be foreseen. You understand that these risks include, but are not limited to, defects in streets and sidewalks, proximity to vehicular and other traffic, poor lighting of streets and sidewalks, carelessness or negligence of guides leading SCH walking tours or of other participants in SCH’s Services; including negligent instruction and/or supervision. YOU VOLUNTARILY, FREELY, AND EXPRESSLY CHOOSE TO INCUR ALL RISKS ASSOCIATED WITH SCH SERVICES, INCLUDING BUT NOT LIMITED TO SCH WALKING TOURS, and understand and agree that those risks may include bodily and personal injury, damage to property, disfigurement and death.
2. Release of Liability: You HEREBY RELEASE AND DISCHARGE SCH, and its tour guides, officers, directors, affiliates, subcontractors, independent contractors, sponsors, partners, agents and employees (collectively, “Releasees”), from any and all liability, demands, claims, expenses, or causes of action whatsoever arising out of any damage, loss or injury to you or your property, or your death, while participating in any SCH walking tour or other activities covered by this Agreement, whether resulting from the negligence or any other fault, either active or passive, of any of the Releasees, or from any other cause. You specifically waive any unenforceability or public policy argument that you could make or could be made on behalf of you or your estate or by anyone who would sue the Releasees as a result of your participation in the activities covered by this Agreement.
3. Agreement Not to Sue: You agree that neither you nor your heirs, executors, administrators, personal representatives, or anyone else claiming on your behalf, shall ever institute any lawsuit or cause of action against any of the Releasees, or initiate or assist in the prosecution of any claim for damages against the Releasees which you may have be reason of injury to your person or property, or your death, arising from the activities included in this Agreement, whether caused by the negligence or fault, passive or active, of any of the Releasees, or from any other cause. You hereby so instruct your heirs, executors, administrators, personal representatives, and/or anyone else claiming on your behalf. Should any such lawsuit or cause of action be instituted against any of the Releasees, you agree that such Releasees shall be entitled to recover from you their attorneys’ fees and costs incurred in the defense of such lawsuit or cause of action, including any arising therefrom.
4. Indemnity Against Third Party Claims: You agree to INDEMNIFY, DEFEND, SAVE, AND HOLD HARMLESS the Releasees from and against any and all losses, claims, damages, expenses, actions, or proceedings of every kind, description and character, including attorneys’ fees and expenses, which may be presented or initiated by any other person or entity and which arise directly or indirectly from (i) your use of SCH Services including but not limited to walking tours, whether resulting from the negligence or other fault, passive or active, of any of the Releasees, or from any other cause or (ii) your breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement. SCH reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification and/or defense by you, in which event you agree to cooperate with SCH in asserting any available defense.
5. Representations and Warranties: Bu using or participating in SCH Services, you represent and warrant that (a) all information you submit is truthful and accurate; (b) you are at least of majority age I all jurisdictions relevant to the validity and enforcement of this Agreement; (c) your use of the SCH Services does not violate any applicable laws, rules or regulations; (d) if you purchase tickets to any SCH Service, including walking tours for any third person or group, all such persons have read, understand, and agreed to be legally bound by this Agreement; (d) if any minor participates in an SCH Service, including a walking tour, in connection with your entering into this Agreement, you accept full responsibility for all medical expenses and any other claims related to such minors’ participation and further agree to RELEASE, HOLD HARMLESS, INDEMNIFY AND DEFEND the Releasees from all claims brought by or on behalf of any minor; and (f) you have read and fully understand this Agreement and its terms and conditions.
6. Term: This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the SCH Services. SCH may terminate your right to use SCH Services at any time, for any reason or no reason, with or without prior notice or explanation, and without liability. SCH may also preserve and disclose information from or about you if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce this Agreement; or (c) protect the rights, property, or personal safety of SCH, its Board members, members, or independent contractors, users of its Services, or the general public. Sections 1- 19, shall survive any termination of this Agreement.
7. Photo and Video Release: You hereby grant, for valuable consideration received, to SCH and its legal representatives and assigns, the irrevocable right to use and publish photographs or video images of you, or images in which you may be included, for trade, editorial, advertising and any other purpose and in any manner or medium, to alter the same without restriction, and to copyright the same. This includes any and all uses. You hereby release SCH, the Releasees and their assigns from all claims and liability relating to said photographs and video.
8. Further Disclaimers: THE SCH SERVICES ARE PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCH SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMTED TO: 91) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, APPROPRIATENESS, RELIABILITY, TIMELINESS, USEFULNESS, OR OTHEWISE OF THE SCH SERVICES; AND(2) ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO, AND SCH IS NOT RESPONSIBLE FOR, (1) ANY ERROR, OMISSION, DELETION, DEFECT, INTERRUPTION, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OF DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER COMMUNICATION, MESSAGE, OR CONTENT, OR (2) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRAMSMISSION, COMPUTER VIRUS, WORM, TROJAN HORSE OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES, PROBLEM OR TECHNICAL MALFUNCTION OF ANY NETWORK, ONLINE SYSTEM, SERVICE OR PROVIDER, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF ANY EMAIL, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLICENCE, DEFAMATION, OR UNDER ANY OTHER CAUSE OF ACTION, IN ANY WAY DIRECTLY OR INDIRECTLY RESULTING FROM OR ARISING OUT OF SCH SERVICES, AND/OR YOUR USE OF ANY WEBSITES TO WHICH SCH LINKS FROM ITS WEBSITE.
SCH DOES NOT PROMISE AND CANNOT GUARANTEE ANY SPECIFIC RESULTS FROM USE OF THE SCH SERVICES OR LINKED SERVICES. UNDER NO CIRCUMSTANCES SHALL SCH BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SCH SERVICES OR LINKED SERVICES, ATTENDANCE AT ANY EVENT, VENUE OR OTHER ESTABLISHMENT MENTIONED OR FEATURED ON SCH, FROM ANY CONTENT ON ITS WEBSITE OR LINKED WEBSITES OR SERVICES, OR FROM THE CONTUDCT OF ANY USERS OF THE SCH SERVICES, WHETHER ONLINE OR OFFLINE.
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT SCH’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT VBE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OF THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDNGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND SCH’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9. Limitation on Liability: IN NO EVENT SHALL SCH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SPONSORS, ADVERTISERS, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SCH SERVICES OR LINKED SERVICES, EVEN IF SCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN ALL CASES REGARDLESS OF THE FORM OF ACTION,WHETHER IN CONTRACT, TORT, OR OTHERWISE; AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SCH’S LIABILITY TO YOU FOR ANY CAUSE WHTSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SCH FOR THE SCH SERVICES.
10. Disputes: This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. You and SCH agree to submit to the exclusive jurisdiction of the courts located within the State of New York, County of New York, to resolve any dispute arising out of this Agreement or the SCH Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SCH SERVICES. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESNTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
11. No Frustration of Purpose of Agreement: The parties shall not take any actions or fail to undertake any action which would frustrate the purpose of this Agreement.
13. Binding Agreement: This Agreement is accepted upon your use of SCH Services, including but not limited to walking tours. Your agreement with SCH will always include this Agreement at a minimum. Your access to and use of certain SCH Services may require you to accept additional terms and conditions applicable to such certain SCH Services, in addition to this Agreement.
14. Entire Agreement: This Agreement constitutes the entire agreement between you and SCH and governs your use of the SCH Services, superseding any prior agreements between you and SCH. Notwithstanding the foregoing, you may also be subject to additional terms and conditions that may apply when you use or purchase certain SCH Services, linked services, affiliate services, third-party content or software, including without limitation, any additional terms contained on tickets for SCH walking tours.
15. Waiver; Headings: The failure of SCH to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only, and have no legal or contractual effect.
16. Severability; Interpretation: This Agreement operates to the fullest extent permissible by law. If any part of this Agreement is held invalid, void or unenforceable, that portions shall be construed in a manner consistent with Applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. This Agreement shall be construed without regard to the party responsible for its preparation. Any ambiguity or uncertainty existing herein shall not be interpreted or construed against any party.
17. No Third Party Beneficiaries: If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action against SCH. This Agreement does not create any third party beneficiary rights.
18. Assignment: You shall not transfer, assign, sublicense or pledge in any manner whatsoever, any of your rights or obligations under this Agreement. SCH may transfer, assign, sublicense or pledge in any manner whatsoever any of its rights and obligations under this Agreement to a subsidiary, affiliate, or successor thereof or to any third party whatsoever, without notifying you or receiving your consent.
19. Applicable Laws/Jurisdiction: SCH Services are void where prohibited. You agree that the laws of the State of New York, excluding its conflicts-of-laws rules, shall govern this Agreement. Please not that your use of SCH Services may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with SCH or relating in any way to your use of the SCH Services resides in the courts of the State of New York, County of New York, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of New York, in connection with any such dispute and including any claim involving SCH or the Releasees.
SCH controls and operates its website and its Services from Brooklyn, NY. It does not represent that materials on the website are appropriate or available for use outside New York State. Persons choosing to access this site from locations outside New York State do so on their own initiative, and are responsible for compliance with New York State and any other local laws, if and to the extent that such laws are applicable.