Travelsist Terms and Conditions
ABOUT THESE TERMS
Accepting these Terms
Welcome to Travelsist! This Terms of Service agreement (“Terms”) is between you (“you” or “your”) and Travelsist, Inc. (“we,” “our,” “us,” or “Travelsist”), and governs your access to and use of our website located at travelsist.com (and any successor site thereto) (the “Site”), our mobile application (the “App”) and related services, including Travelsist’s product rental and sale services (together with the Site and the Content (as defined below), the “Services”). These Terms also apply to in-person rentals and sales, which are part of the Services.
Please review these Terms carefully; by accessing or using any of the Services, including by creating an Account (as defined below), you acknowledge that you have read, understood, and agreed to be bound by these Terms.
These Terms are a legally binding contract between you and Travelsist. By accepting these Terms, you represent that you are an individual of legal age to form a binding contract or, if you are not, that you have obtained parental or guardian consent to enter into these Terms. Under no circumstances may you access or use the Services if you are under thirteen (13) years old. Your access to and use of the Services in any way also means that you agree to all of these Terms, and these Terms will remain in effect while you access or use the Services. These Terms incorporate by reference any additional terms and conditions posted by Travelsist through the Site, or otherwise made available to you by Travelsist (the “Additional Terms”), and you understand and agree that by accessing or using any of our Services, you agree to also comply with all Additional Terms.
EXCEPT FOR LIMITED CIRCUMSTANCES DESCRIBED IN SUBCLAUSE (c) OF THE ARBITRATION AGREEMENT BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, OR TO A TRIAL BY JURY.
The Services are controlled or operated (or both) from the United States, and are not intended to subject Travelsist to any non-U.S. jurisdiction or law. You may not use the Services to rent or purchase Products outside of the United States. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
We may, at any time and without liability, suspend, modify, or discontinue all or part of the Services (including access to the Site via any third-party links). We encourage you to check our Site periodically for the most current Service offerings. Similarly, we may update the Content, including descriptions and specifications about Products or Services, and we reserve the right to remove any Content (as described below) at any time, for any reason (including, but not limited to, if someone alleges you contributed Content in violation of these Terms), in our sole discretion, and without notice. Travelsist will have no liability for any change in the Services, or any suspension or termination of your access to Services.
We also reserve the right to change these Terms at any time by notifying you of such changes by any reasonable means, including by posting the revised Terms on the Site. The “Last Updated” legend above indicates when these Terms were last changed. At our discretion, we may also notify you of certain changes by sending you an email to the email address associated with your Account. You are responsible for providing us with your current email address when you create an Account, and, if your email address changes, for updating your Account information to reflect your new email address. Your continued use of the Services, including by renting or purchasing Products (as defined below) from us, following any changes to these Terms will indicate your acknowledgement of such changes and agreement to be bound by the revised Terms. Any changes to the Terms will not apply to any dispute between you and us that arises prior to the date on which we posted the revised Terms incorporating such changes, or otherwise notified you of such changes. If you don’t agree with the new Terms, you may no longer access or use the Services.
How to Access Travelsist Services
As noted above, you must be 13 years or older to access or use the Services. To use the Services, you may be required to sign up for an account (your “Account”), select a password and username (your “Travelsist User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and up-to-date information, and to maintain and update such information. You may not select as your Travelsist User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. We may reject, or require that you change, any Travelsist, password or other information that you provide to us in registering for an Account. You may not transfer your Account to anyone else without our prior written permission. You may only register one Account per Paid Service (as defined below).
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services operated by third parties (each, a “Third Party Account”), such as those offered by Google and Facebook. By using the Services through a Third Party Account, you authorize us to access information from such Third Party Account for use in connection with the Services.
You may only use the Services and Products made available to you for your own personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services or Products is prohibited by these Terms or any Additional Terms or applicable laws, then you are not authorized to use the Services or Products. You are solely responsible for any use by you of any Services or Products in violation of these Terms, any Additional Terms, or applicable law.
You may not share your Account (including your Travelsist User ID or password) with anyone, and you must protect the security of your Account (including your Travelsist User ID and password) and any other access tools or credentials. You’re solely responsible for any activity associated with your Account, including all charges incurred from use of the Services with your Account.
We may, for any reason, limit or restrict your access to or use of the Services, including, but not limited to, refusing to fulfill any order that you place with us or restricting orders placed under a single customer Account, payment card, or billing or shipping address. We reserve the right to limit, cancel, or prohibit any use of the Services for any reason in our sole discretion, including but not limited to availability and geographic concerns, or if we determine or suspect that you are using the Services for fraudulent or commercial purposes or for any other purposes in violation of these Terms or any Additional Terms.
Requesting Services. Each IQP provides Services in a specific geographic location. You can request Services via the Platform by selecting an IQP servicing the desired location and adding the desired Services to your cart.
Paying for Services and Tipping. All fees and taxes applicable to the requested Services will be included in the price set forth on the Platform (collectively, the “Fee”). Certain Services are subject to a minimum charge. You agree to pay the Fee for any Services requested. We will charge the Fee at the time the Services are requested to the payment method you provide at checkout. IQPs will not accept cash or personal checks for Services (other than for tips or for payment for repair or replacement to any rental equipment). After you have received Services, if you would like, you may tip your IQP via the Platform or in cash.
Service Requests that Cannot be Fulfilled. If the IQP you selected is for any reason unable to provide the requested Services, you will be notified and provided with a full refund.
Delivery/Pick Up and Service Locations. The IQP will work directly with you to establish delivery/pick up or service location and times (via telephone, text, or email). You are responsible for providing complete and accurate information regarding the delivery/pick up or service address and contact.
Additional Services Requests. If, before or after delivery of initially requested Services, you would like to receive additional Services, you may request those Services via the Platform or by contacting the IQP. All additional Services will be provided at the rates set forth on the Platform, or in the case of special requests, at the rates agreed upon between you and the IQP. We will charge the additional Fee at the time the additional Services are requested to the payment method you provided for the initially requested Services. IQPs will not accept cash or personal checks for additional Services and you agree you will not attempt to pay any IQP outside of the Platform.
3.6 Dissatisfaction with Services. If you have a problem or are dissatisfied with any Services provided, you must notify the IQP within 24 hours of receipt of the Services (or you waive the right to any refund). The IQP will use best efforts to replace the item/re perform the Services as soon as possible. Rental equipment photos may or may not represent the actual equipment available for rent. If you require the specific item of equipment shown in the photo, you must communicate that to the IQP under Special Requests.
3.7 Convenience Fees. If you require delivery/pick up of equipment or provision of cleaning services outside the business hours provided by the IQP or on a holiday, you may be charged a convenience fee. If the IQP is unable to provide the requested service or required to return to a delivery or service location for any reason that is not due to an error on the part of the IQP (for example, no one is available at the prearranged time, Customer Equipment to be cleaned has been recalled or is expired, you request additional or replacement rental equipment), you will be charged a convenience fee.
Cost of the Services
We may charge you to access and use certain parts of the Services (the “Paid Services”). We reserve the right to modify or waive fees required to use certain parts of the Services. You are solely responsible for: (i) the fee for any Paid Services that you order and that are not cancelled in accordance with our cancellation policy, (ii) the price of any Products that are not returned in accordance with our policies, and (iii) any late fees accrued by you due to late or lost items.
For more information about our Services, including pricing and fees and cancellation policies, please see our FAQ Section. Please note that any pricing, fees, and payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
If you rent a Product through our Reserve Service, the rental fee (“Rental Fee”) will include rental coverage charges and delivery charges (as applicable) listed on the Reserve Service for your rental of the applicable Product. Travelsist reserves the right to alter the Rental Fee or availability of any particular item at its discretion and without notice.
Terms that Apply Only to Equipment Rental Services.
(a) Extension of Rental Period. If you would like to extend your rental period, you may do so via the Platform or by contacting the IQP, subject to availability. We will charge you for the additional rental period at the same rates we charged for the original rental period at the time the extension is requested. Extensions requested less than 24 hours prior to the originally scheduled pick up time may be subject to an extension fee.
(b) Condition of Equipment on Return. You are responsible for any loss, theft, or destruction of any rental equipment for any cause during the rental period. Equipment must be returned in the condition it was received. You may not allow food or beverage in any equipment other than high chairs or booster chairs and you may not allow smoking near the equipment. If any equipment is not reasonably clean on return, you may be charged a per-item cleaning fee. If any equipment is returned (i) with evidence of vomit or excrement or (ii) smelling of smoke, you may be charged an additional per-item detail cleaning fee. If any equipment is damaged (i.e., repair is reasonably feasible), you will be charged a reasonable amount for repair. If any equipment is lost, stolen, or otherwise not returned, or the equipment is destroyed (i.e., repair is not reasonably feasible), you will be charged the fair market value of the equipment plus any shipping costs incurred by the IQP in connection with replacement of the equipment. If you are required to pay any fees for cleaning, repair, or replacement of equipment, the IQP will notify you and we will charge the credit card associated with your Travelsist Account.
(c) Compliance with Equipment Manufacturer Documentation and Applicable Law. You agree to comply with all (i) manufacturer user manuals or other written instructions for use provided or available to you and (ii) all laws, rules, and regulations relating to your use of any rental equipment, including without limitation, Child Passenger Safety Laws. IQPs will not install any car seat for you. All car seats will be provided with manufacturer user manuals and, upon request, the IQP will provide you with a list of certified agencies in the area that can assist you. If an IQP-provided car seat is in a vehicle involved in any accident, whether or not the child is in the car seat at the time, per the car seat manufacturer and the recommendations of the National Highway Traffic Safety Administration, the IQP may need to replace the car seat. If a car seat provided to you by an IQP is in a vehicle involved in any accident while in your possession, you agree to (A) notify the IQP of the accident, (B) supply the IQP with the accident report, if any, and (C) pay the IQP the fair market value to replace the equipment, if necessary. Most insurance companies will replace car seats involved in an accident.
(d) Request for Services on Behalf of a Guest. If you are a hotel or other provider of accommodations and you are requesting equipment rental services on behalf of a guest, you are required to provide us with the guest’s email address so that we can ensure that the guest is made aware of and agrees to these Terms.
Other Terms Related to Products and Services
Use of the Products
You agree to treat the Products with great care. The rental coverage provided by us covers normal wear and tear, but you are responsible for any loss, destruction, or damage to the Products for any reason, including due to theft, loss, mysterious disappearance, fire, major stains, or any other cause. “Normal wear and tear” means minor stains, rips, missing beads, stuck zippers, or other minor damage that is covered by the rental coverage. If you return a Product that is damaged beyond normal wear and tear, then you hereby authorize us (or our third-party payment processor) to charge your Payment Method for the price for repairing or replacing the Product, as determined in our discretion, up to the full Retail Value for the Product.
Product and Service Descriptions
We may, in our sole discretion, provide listings, descriptions, or images of Products that are available on the Services, as well as references and links to Products, but we do not warrant that the Product listings, descriptions, or images are accurate, complete, reliable, current, or error-free, or that any Products will be available, even if noted as so on our Services. Such information and the availability of any Product are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer (including a smartphone or similar device) will accurately display such colors. The prices displayed for Products and Services are quoted in U.S. dollars, unless otherwise indicated. Prices and availability for Products on our Reserve Service are not confirmed until the applicable Products are shipped; if the actual price of such a Product is higher than our stated price, or if the Product is no longer available, we will contact you for instructions before shipping or cancel your order and notify you of such cancellation. The availability through the Services of any listing, description, or image of a Product does not imply our endorsement of such Product or affiliation with the provider of such Product.
You must provide us with accurate shipping information, so that we can timely deliver Products to you. You are responsible for providing us with accurate shipping information for deliveries and for keeping the shipping information for your Account up-to-date. If you provide us with a shipping address that is invalid or where you cannot securely accept Products upon delivery, or if you do not keep your shipping information up-to-date, you are solely responsible for any resulting loss, theft, or damage to the Products. Following delivery to the designated address, as between you and us, you will be solely responsible for the condition of each Product until you return such Product (including while they are in transit). We reserve the right to reject, cancel, or prohibit any rentals or sales of Products for any reason. Please see our FAQ Section for more information regarding deliveries.
Returns, Extensions, Shipping, and Lost Items
You agree to return each rented Product (other than Products that you purchase) to Rent the Runway by the return date for such Product identified in your online account and/or the applicable invoice for your order or as otherwise set forth in these Terms (the “Product Return Date”). We may, but are not required to, permit you to extend your order for a Product (including by contacting us), subject to prepayment of any additional fees applicable to that Product for the period of time of the extension.
We are not responsible for any personal or other items left in the Products or which are returned to Travelsist in the Return Packaging. If you believe you have accidentally or otherwise sent any such items to us, please contact customer service as soon as possible at firstname.lastname@example.org. We may, but are not required to, assist you in attempting to locate such items at your request, and we assume no responsibility or liability if we attempt to locate such items.
How Payments Work
When you place a rental order for a Product, you hereby authorize Travelsist to charge your payment card or other payment instrument (“Payment Method”) for the Rental Fee. You must ensure that at all times your Payment Method is valid and up-to-date. You are responsible for providing complete and accurate billing and contact information to Travelsist and notifying Travelsist of any changes to such information. Travelsist will charge your Payment Method the amount of the Rental Fee immediately upon your rental order. A reservation of a Product through the Services is an order for the rental of that Product, regardless of how far in advance that Product is reserved. In addition, at the time of your rental order for a Product, you hereby authorize Travelsist to charge your Payment Method for an amount up to the Retail Value of the Product set forth on the applicable Service plus applicable sales taxes; provided that Travelsist will only charge your Payment Method for an amount that is greater than the Rental Fee as described below and in the Cost of Services section above. Rental Fees exclude all federal, state, and local taxes, goods and service tax, fees, customs, duties, levies, and other governmental assessments, all of which shall be paid by you directly or, if paid by Travelisist, shall be paid by you to Travelsist in connection with your rental order.
We use a third-party payment processor (the “Payment Processor”) to bill you for any Paid Services through a payment account linked to your account (your “Billing Account”). By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen Payment Method. You agree to make payment using that selected Payment Method, but if the Payment Processor is not able to charge your preferred Payment Method, you authorize us to use any Payment Method stored on record for your Billing Account. We reserve the right to suspend or cancel a rental order or terminate your access to the Services in the event that we are unable to successfully charge the provided Payment Method. We are not responsible for errors by the Payment Processor, and we reserve the right to correct any errors or mistakes that we or the Payment Processor make(s) even if we have or our Payment Processor has already requested or received payment. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand
Information Provided by Customers
You must provide current, complete, and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete, and accurate (such as a change in billing address, credit card number, or credit card expiration date). If your Payment Method is canceled for any reason (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your User ID or password, you must promptly notify us and update your Payment Method. Changes to such information can be made in your account settings. IF YOU FAIL TO PROVIDE ANY OF THE REQUIRED INFORMATION OR KEEP SUCH INFORMATION UP-TO-DATE, YOU AGREE AND ACKNOWLEDGE THAT WE MAY CONTINUE CHARGING YOU USING ANY PAYMENT METHOD YOU HAVE ON RECORD, FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT, UNLESS YOU HAVE CANCELLED OR PAUSED YOUR PAID SERVICES OR TERMINATED YOUR ACCOUNT IN ACCORDANCE WITH THESE TERMS.
We may immediately, without notice, terminate or suspend your Travelsist Account and your access to the Platform if (a) you have materially breached your obligations under these Terms, (b) you have violated applicable laws, regulations or third-party rights, or (c) we believe in good faith that such action is reasonably necessary to protect the personal safety or property of Travelsist, its IQPs, or third parties. If your access to your Travelsist Account and your access to the Platform has been terminated or suspended, you may not register a new Travelsist Account or access and use the Platform through a Travelsist Account of another User.
If you choose to use the Platform or the Content, you do so voluntarily and at your sole risk. The Platform and the Content are provided “as is”, without warranty of any kind, either express or implied.
If we choose to conduct identity verification or background checks on any Travelsist Concierge to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by an IQP or guarantee that an IQP will not engage in misconduct in the future.
You acknowledge and agree we are not a party to any transaction between you and any IQP. We have no control over and do not guarantee the existence, quality, safety, suitability, or legality of any services provided by IQPs, the truth or accuracy of any IQP Content or any ratings or reviews posted by Users, or the performance or conduct of any IQP.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
If you are dissatisfied with the Platform, you do not agree with any part of these Terms, or you have any other dispute or claim with or against us, any Independent Quality Provider or any other User with respect to these Terms, the Platform, or the Services, then your sole and exclusive remedy against us is to discontinue using the Platform.
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 Platform and the Content and your use of the Services, and any interaction you have with IQPs or other Users, whether in person or online, remains with you. Use of certain rental equipment, including without limitation, trampolines, inflatables, and play structures, may result in physical injury, especially when used by multiple persons at once. Neither Travelsist nor any other party involved in creating, producing, or delivering the Platform, the Content, or the Services, including without limitation any IQP (“Released Parties”), 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 (a) these Terms, (b) the use of or inability to use the Platform or the Content, (c) any communications, interactions or meetings with, other Users or other persons with whom you communicate, interact or meet with as a result of your use of the Platform, or (d) your use of the Services, including your use of any rental equipment, use of any of your equipment after it has been cleaned, or use or consumption of any products delivered, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we have 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.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between us 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. If you reside outside of the U.S., this does not affect our liability for death or personal injury arising from our negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law..
You agree to release, defend (at our option), indemnify, and hold Travelsist, the Released Parties and its and their affiliates and subsidiaries, 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 breach of these Terms or any laws, regulations or third party rights, (b) your improper use of the Platform, the Content, or any Services, and (c) your interaction with any Travelsist personal, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you may not in any event settle any matter without our prior written consent.
11.1 Severability. If any provision of these Terms is or becomes invalid or nonbinding, the parties will remain bound by all other provisions hereof. In that event, the parties will replace the invalid or nonbinding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or nonbinding provision, given the contents and purpose of these Terms.
11.2 Assignment. You may not assign or transfer these Terms or any of your rights or obligations hereunder, in whole or in part, without our prior written consent.
11.3 Entire Agreement. These Terms, including any policies referenced herein, constitute the entire agreement and understanding between us and you with respect to your use of the Platform, the Content, and the Services and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding your use of the Platform, the Content, or the Services.
11.4 No Waiver. If we fail to enforce any right or provision in these Terms, the failure will not constitute a waiver of that right or provision.
11.5 Interpretation. In these Terms, the words “including” and “include” mean “including, but not limited to.” Section headings are for convenience of reference only and shall not affect the meaning of any provision of these Terms.
11.6 No Third-Party Beneficiaries. The Released Parties are intended to be third-party beneficiaries. Except for the Released Parties, there are no third-party beneficiaries to these Terms.
11.7 Notices. Any notice delivered by us to you will be delivered by email to the email address associated with your Travelsist Account or, if you don’t have a Travelsist Account, the email address you provided when you submitted the relevant request for Services (to be clear, IQP’s will contact you via whatever method you and the IQP agree upon (e.g., email, cell phone)). Any notice delivered by you to us will be delivered by email to email@example.com.
11.8 Feedback. You may provide us with comments, suggestions, enhancement requests, recommendations or other feedback arising out of your experience with the Platform, the Content, or the Services (collectively "Feedback"). If you do provide Feedback, you assign to us all right, title, and interest, including any intellectual property rights therein, and agree not to assert any "moral rights", in and to the Feedback. Further, you understand and acknowledge that we will own all right, title and interest, including intellectual property rights therein, in and to any enhancements to the Platform, the Content, or the Services, or other services offered by us or any of our affiliates, or any new services developed by us or any of our affiliates, based upon or otherwise incorporating your Feedback.
12.1 Choice of Law. As between Travelsist and you, these Terms will be governed by the laws of the State of California, without regard to the choice of law or conflicts of law provisions of any jurisdiction. Both Travelsist and you submit to the exclusive jurisdiction of the state and federal courts located in the State of California for enforcement of arbitral awards or for temporary or preliminary injunctive relief for the limited purpose of avoiding immediate and irreparable harm, which will not be subject to the requirements of Section 12.2.
12.2 Dispute Resolution Our right to amend these Terms at any time as set forth above does not apply to this Section 12.2 (this “Dispute Resolution Agreement”). The version of this Dispute Resolution Agreement in effect on the date you last accepted these Terms controls.
We want your experience with the Platform and the Travelsist concierge to be a positive one. If you have a problem or dispute, we will do our best to resolve your concerns. If we are unsuccessful, you may pursue claims as explained in this Dispute Resolution Agreement.
Step 1: Amicable Resolution
You agree to give us an opportunity to resolve any disputes relating in any way to the Platform, the Services, any interaction with an IQP, or these Terms by contacting us at firstname.lastname@example.org.
If we are unable to resolve the dispute, you agree to first attempt to settle the dispute through a nonbinding mediation proceeding. In the event any party to such mediation proceeding is not satisfied with the results thereof, then any unresolved disputes will be finally settled in accordance with a binding arbitration proceeding. In no event will the results of any mediation proceeding be admissible in any arbitration or judicial proceeding.
Step 2: Non-binding Mediation
Mediation proceedings will be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") in effect on the date the notice of mediation was served, other than as specifically modified herein, and will be nonbinding on the parties thereto. Any party may commence a mediation proceeding by serving written notice thereof to the other parties, by mail or otherwise, designating the issues to be mediated and the specific provisions of these Terms under which the issues and dispute arose. The initiating party will simultaneously file two copies of the notice with the AAA, along with a copy of these Terms. A party may withdraw from the dispute by signing an agreement to be bound by the results of the mediation, to the extent the mediation results are accepted by the other parties as provided herein. A party who withdraws will have no further right to participate in the dispute.
The parties will select one neutral third party AAA mediator with expertise in the area that is in dispute. If a mediator has not been selected within ten (10) business days after receipt by the non-initiating party of the notice of mediation, then a mediator will be selected by the AAA in accordance with the Commercial Mediation Rules of the AAA.
The mediator will schedule sessions, as necessary, for the presentation by all parties of their respective positions, which, at the option of the mediator, may be heard by the mediator jointly or in private, without any other members present. The mediation proceeding will be held in San Francisco, California, or such other place as agreed by the mediator and all of the parties. Each of the parties may submit to the mediator, no later than ten (10) business days prior to the first scheduled session, a brief memorandum in support of their position.
The mediator will make written recommendations for settlement in respect of the dispute, including apportionment of the mediator’s fee, within ten (10) business days of the last scheduled session. If any party involved is not satisfied with the recommendation for settlement, that party may commence an arbitration proceeding.
Step 3: Binding Arbitration
Binding arbitration proceedings will be conducted under the Rules of Commercial Arbitration of the AAA (the "Rules"). A party may withdraw from the dispute by signing an agreement to be bound by the results of the arbitration. A party who withdraws will have no further right to participate in the dispute.
The arbitration panel will consist of one arbitrator. The parties will select one neutral third party AAA arbitrator (the "Arbitrator") with expertise in the area that is in dispute. If an Arbitrator has not been selected within ten (10) business days after receipt by the non-initiating party of the notice of arbitration, then an Arbitrator will be selected by the AAA in accordance with the Commercial Arbitration Rules of the AAA. The arbitration proceeding will be held in San Francisco, California or such other place as agreed by the arbitrator and all of the parties. Any arbitrator who is selected will disclose promptly to the AAA and to both parties any financial or personal interest the arbitrator may have in the result of the arbitration and/or any other prior or current relationship, or expected or discussed future relationship, with the parties or their representatives. The arbitrator will promptly conduct proceedings to resolve the dispute in question pursuant to the then existing Rules. To the extent any provisions of the Rules conflict with any provision of this Section 15, the provisions of this Section 15 will control.
In any final award and/or order, the arbitrator will apportion all the costs (other than attorney's fees which will be borne by the party incurring such fees) incurred in conducting the arbitration in accordance with what the arbitrator deems just and equitable under the circumstances. The parties agree that the results of the arbitration will be binding and non-appealable.
Discovery will not be permitted in such arbitration except as allowed by the Rules, or as otherwise agreed to by all the parties. Notwithstanding, the parties agree to make available to one another and to the arbitrator, for inspection and photocopying, all documents, books, and records, if determined by the arbitration panel to be relevant to the dispute, and by making available to one another and to the arbitration panel personnel directly or indirectly under their control, for testimony during hearings if determined by the arbitration panel to be relevant to the dispute. The parties agree, unless undue hardship exists, to conduct arbitration hearings to the greatest extent possible on consecutive business days and to strictly observe time periods established by the Rules or by the arbitrator for the submission of evidence and of briefs. Unless otherwise agreed to by the parties, a stenographic record of the arbitration proceedings will be made and a transcript thereof will be ordered for each party, with each party paying an equal portion of the total cost of such recording and transcription.
The arbitrator will have all powers of law and equity, which it can lawfully assume, necessary to resolve the issues in dispute including, without limiting the generality of the foregoing, making awards of compensatory damages, issuing both prohibitory and mandatory orders in the nature of injunctions and compelling the production of documents and witnesses for presentation at the arbitration hearings on the merits of the case. The arbitrator will neither have nor exercise any power to act as amiable compositeur or ex aequo et bono; or to award special, indirect, consequential or punitive damages. The decision of the arbitrator will be final and in written form and state the reasons upon which it is based. The parties agree to participate in the arbitration in good faith.
Step 4: Enforcement of Award
Any action or proceeding subsequent to enforce an award rendered by the arbitrator in the dispute will be filed in a court of competent jurisdiction in the same county where the arbitration of the dispute was conducted, and California law will apply in any such subsequent action or proceeding.
12.3 Jury Trial Waiver. You and Travelsist acknowledge and agree that we are each waiving the right to a trial by jury as to all disputes.
12.4 No Class Actions or Representative Proceedings. You and Travelsist acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all disputes. Further, unless you and Travelsist both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding.
12.5 Severability/Unenforceability. In the event that any portion of this Section 12 is deemed illegal or unenforceable, such provision shall be severed and the remainder of this Section 12 shall be given full force and effect. In the event that your agreement to have any unresolved dispute finally settled via binding arbitration is unenforceable, you agree: (a) that the laws of the State of California will govern any dispute arising out of or in connection with these terms, without regard to conflicts of laws provisions, (b) to venue in the federal courts located in San Francisco, California, and to waive any claims based upon improper or inconvenient venue or lack of jurisdiction, and (c) that Sections 12.3 and 12.4 will apply.