Terms of Service
EFFECTIVE DATE: July 22, 2015
”) apply to any website, mobile application, feature, widget or other online service that is owned or controlled by Drury Hotels Company, LLC or its affiliates or subsidiaries (collectively, “Drury
”) and that posts a link to these Terms (“Site
”). IMPORTANT! PLEASE CAREFULLY READ THESE TERMS BEFORE USING THE SITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS
. By accessing or using the Site, you represent and warrant that your activities are lawful in every jurisdiction where you access or use the Site. This is a general audience web site. You may only use the services offered on the Site (such as reserving a hotel room) if you are at least 18 years of age and can form legally binding contracts under applicable law.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES. Except for certain types of disputes described in the LEGAL DISPUTES/ARBITRATION section below, you agree that disputes between you and Drury will be resolved by binding, individual ARBITRATION and you waive your right to participate in a class action lawsuit or class-wide arbitration.
There may be times when we offer special features that have their own terms and conditions that apply in addition to these Terms (“Additional Terms
”). In those cases, unless otherwise stated in the Additional Terms, the Additional Terms specific to the special feature will govern and control if and to the extent there is a conflict with these Terms.
TABLE OF CONTENTS
Use of the Site
Reservations and Sales Policies
Account Cancellation and Termination
Restrictions on Use
Unavailability of Products and Services
Reporting Copyright and Other Intellectual Property Violations
Viral Distribution and Widgets
Third Party Links, Content and Applications
Limitation of Liability
No Third Party Beneficiaries
Location and Territorial Restrictions
Our Right to Update These Terms
You can browse certain portions of the Site without creating an account. However, certain features (such as our Drury Gold Key® Club program) are not accessible without a user account. If you decide to create an account, you will be required to supply us with personally identifiable information such as your first and last name, mailing address, email address and phone number. You will also need to create a unique username and a password. Only you are authorized to use these login credentials in connection with the Site. You may only have one account for use of the Site. You are solely responsible for maintaining and protecting the confidentiality of your login credentials, and you are fully responsible for all activities that occur under those credentials. You agree that you will not sell or otherwise transfer your account or any rights you have as an account holder. You agree to notify us immediately if you suspect any unauthorized use of your account or access to your password. We reserve the right to terminate your account or otherwise deny you access to the Site in our sole and absolute discretion without notice and without liability. If your account is terminated or suspended, you will no longer have access to your account or any associated profile, points balance, points history, stay history or other information contained within your account profile or history. By creating an account on the Site, you warrant and represent that all information you provide to us is and will remain complete and accurate at all times.
Use of the Site
You agree that you will only use the Site for your own personal use, unless you receive prior written permission from Drury. Your own personal use includes without limitation, making reservations for yourself and your guests or a company or person for whom you are authorized in advance to act. You agree that you will make only legitimate reservations in good faith for use by you and your invited guests only, and not for other purposes, including without limitation, reselling, impermissibly assigning or posting on third party websites, or making speculative, false or fraudulent reservations, or any reservation in anticipation of demand. Drury reserves the right to cancel or modify reservations where it appears that you have engaged in fraudulent or inappropriate activity or under other circumstances where it appears that the reservations contain or resulted from a mistake or error.
Reservations and Calcellation Policies
We may make reservation, cancellation, and related policies available to you by displaying these policies or links to these policies during the reservation process on the Site. Please refer to those policies for information on reservations, fees, pricing, cancelations and refunds applicable to your transaction.
By using the Site, you agree: (i) to only make legitimate reservations or purchases for yourself and your invited guests or an individual for whom you are authorized in advance to act and to pay the amount shown to you during your checkout process on the Site; and (ii) that we are not responsible or liable for errors in the pricing displayed on the Site or elsewhere during the booking and checkout process or an error in the available hotel rooms posted on the Site or elsewhere.
You hereby authorize us and the applicable payment processor to charge the credit card we have on file with your account (or other authorized payment mechanism on file with your account or that you provide at the time of checkout) in the amount of fees and in the manner disclosed to you at checkout.
Account Cancellation and Termination
You may cancel your Site account by calling 1-800-325-0581 at any time and indicating your intention to cancel your account. We may terminate these Terms at any time by either discontinuing the Site, or can terminate your account for your violation of any of Drury’s policies or the terms and conditions of these Terms, including, but not limited to, the Restrictions on Use set forth below. Any obligations and duties that, by their nature, extend beyond the expiration or termination of these Terms will survive the expiration or termination of these Terms.
Restrictions on Use
You agree not to:
- Sell, auction or otherwise transfer rooms you book on the Site, including without limitation reselling rooms or reservations, posting, advertising, or otherwise distributing rooms, reservations, or availability (including, without limitation, on third-party web sites), making false, fraudulent, or speculative reservations, or reserving rooms in anticipation of demand, unless you have obtained our prior express written consent.
- Use the Site or any Site Content (as defined below) for any commercial purpose, including without limitation, marketing or advertising, or to provide services to any third party as a service bureau without our prior express consent.
- Frame the Site or Site Content without our prior express written consent.
- Use any manual or automated process, including, without limitation, robots, spiders or scrapers to access, copy, monitor or mine the Site or any Site Content for any purpose without our prior express written permission except as may be a result of standard search engine or Internet browser usage.
- Take any action that causes the Site to cease working properly.
- Utilize any device, software or routine that will interfere or attempt to interfere with the functionality of the Site.
- Resell, copy, distribute, transfer, reverse engineer, disassemble, decompile, create derivative works of, or allow third-party access to the Site, any Site Content or any software or code contained therein.
We may cancel reservations or purchases made or transferred in violation of these Terms or any Drury policy without notice in our sole and absolute discretion, without limiting any of our other rights or remedies in these Terms or elsewhere.
Unavailability of Products and Services
The Site contains information on Drury’s products and services, not all of which are available in every location. A reference to a Drury product or service on the Site does not imply that such product or service is or will be available at a particular location.
Unless otherwise explicitly specified by Drury, all materials that are included in or are otherwise a part of the Site, including past, present and future versions, domain names, source and object code and the “look and feel” of the Site (“Site Content
”) are owned, controlled or licensed by Drury, its subsidiaries or affiliates, and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, and other laws, rules, regulations and treaties. Site Content may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, except with the express permission of Drury and as is expressly provided in these Terms. Any unauthorized use of Site Content is prohibited.
We may provide certain features on the Site that allow you to communicate with us, such as suggestions, comments, or questions to us (“Content”). If you provide us Content, you grant to us an unrestricted, worldwide, irrevocable, perpetual, transferable and royalty-free license to host, use, copy, distribute, display, perform, modify, translate, store or otherwise exploit all or any portion of your Content for any purpose whatsoever in all formats, on or through any media, technology or device now known or hereafter developed and to use your name and likeness in connection with the same. You represent and warrant that you own or otherwise have appropriate permission to upload and share your Content and license it to us in accordance with these Terms; that your Content is accurate; and that use of your Content does not violate these Terms or the rights of any third party and will not cause injury to any person or entity. We will have the right but not the obligation to monitor and edit or remove any activity or content, including but not limited to, your Content that violates these Terms or the standards for the Site, as we determine in our sole and absolute discretion. We take no responsibility and assume no liability for your Content or any content submitted by any third party.
You agree that your Content will be treated as non-confidential and non-proprietary and will not be returned. You agree that you either: (i) own the rights to your Content and the right to grant all of the rights and licenses in these Terms; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms and grant Drury the license above. Upon Drury’s request, you will furnish us with any documentation, substantiation or releases necessary to verify your compliance with these Terms. Except as prohibited by law, you waive any moral rights you may have in your Content you submit, even if such Content is altered or changed in a manner not agreeable to you.
Reporting Copyright and Other Intellectual Property Violations
You may not use the Site for any purpose or in any manner that infringes the rights of any third party. Drury encourages you to report any content on the Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA
”), Drury has a designated agent for receiving notices of copyright infringement and Drury follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Drury’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that any content on the Site violates your rights other than copyrights, please provide Drury with at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.
Please send your notice of claims of copyright infringement on or regarding the Site or other complaint regarding alleged violation of rights to Drury’s copyright agent, who can be reached as follows:
Joseph B. Pereles
721 Emerson Road, Suite 400, St. Louis, MO 63141
E-mail Address: Copyright.Claim@druryhotels.com
NOTE: This contact information is for inquiries regarding potential copyright and other infringement only.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
Drury will provide you with notice if your materials have been removed based on a third-party complaint of alleged infringement of the third party’s intellectual property rights.
Viral Distribution and Widgets
Drury may allow you, but only through express written permission, to engage in certain personal uses of Site Content that include the ability to share Site Content with others (“Viral Distribution
”). For example, the Site may allow you to send Site Content to friends, display Site Content on your personal web site or post Site Content on a third party web site. You agree that you will not imply that you and Drury are affiliated in any way or that Drury approves of your comments. We reserve the right to revoke our permission for Viral Distribution at any time and for any reason and you agree to immediately cease Viral Distribution upon notice of revocation and to comply with any provisions we post in connection the Viral Distribution of Site Content.
Similarly, the Site may provide content that you may choose to embed on your personal web page, third party website or social networking site (collectively and each, your “Personal Page”) by pasting the HTML or other code provided by us (typically labeled as an “embed code”) (“Widgets”). Widgets are Site Content. We may discontinue providing the services necessary for the Widgets to operate or we may disable Widgets you have embedded at any time for any reason without any liability to you. You agree that our permission to you to use our Widgets on your Personal Page does not provide you (or any third party) with any intellectual property rights in or to the Widget or any Site Content made available via any Widget. Some Widgets and Site Content are only made available for use pursuant to a separate agreement between Drury and the user.
NOTICE TO THIRD PARTY SITES:
Any Site Content made available in connection with your Personal Page or otherwise by our Widgets, third party widgets or otherwise, is our exclusive property and no grant of any intellectual property rights is made by us. We retain the right to demand that you cease any use of our Site Content upon notice.
Third Party Links. Content and Applications
There may be links from the Site, or from communications you receive from us, to third party websites or online features. The Site also may include third party content that we do not control, maintain or endorse. Functionality on the Site may also permit interactions between the Site and a third party website or online feature, including applications that connect the Site or your profile on the Site with a third party site, service, application or other online feature. For example, the Site may include a third-party feature that allows you to find directions to our hotel locations, such as through Google Maps. You can find Google’s Terms of Service here
We grant you the revocable permission to link to the Site; provided, however, that any link to the Site: (a) must not frame or create a browser or border environment around any of the content of the Site or otherwise mirror any part of the Site; (b) must not imply that we or the Site are endorsing or sponsoring any third party or its products or services, unless we have given the third party prior written consent; (c) and surrounding content must not present false information about, or disparage, tarnish, or otherwise, in our sole opinion, harm us or our products or services; (d) must not use any of our trademarks without our prior written permission; (e) must not contain or appear on the same page as content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in our sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Site, you agree that you do and will continue to comply with the above linking requirements.
Notwithstanding anything to the contrary contained in these Terms, Drury reserves the right to prohibit linking to the Site for any reason in our sole and absolute discretion.
The Site may contain or offer sweepstakes or other promotions, which may be governed by a separate set of rules that describe the sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes or promotion.
The Site may offer features and services that are available to you via your mobile device. These features and services may include, without limitation, the ability to upload content to the Site, enable Drury access to your location, receive messages from the Site, download applications to your mobile phone or access features from the Site (collectively, the “Mobile Features
”). Standard messaging, data and other fees may be charged by your carrier. Carrier fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. Additional provisions governing any such Mobile Features may be provided by Drury. Please carefully review any additional provisions before downloading content, providing your mobile number, opting in, or taking other action in connection with a Mobile Feature.
If you change or terminate your mobile account, you are responsible for promptly updating your Drury account information so that any messages or notices from us regarding the Site are sent to you and not to the person who is assigned your old number or account.
You agree to defend, indemnify and hold us, our employees, managers, officers, agents and vendors (collectively, the “Drury Parties
YOU AGREE THAT THE SITE AND ITS CONTENT IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE DRURY PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) YOUR CONTENT; AND/OR (C) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE DRURY PARTIES OR VIA THE SITE. IN NO WAY LIMITING THE FOREGOING, YOU AGREE THAT THE DRURY PARTIES ARE NOT RESPONSIBLE FOR (A) COMMUNICATION FAILURES, ERRORS, DIFFICULTIES, OR OTHER MALFUNCTIONS OR LOST, STOLEN, OR MISDIRECTED TRANSACTIONS, TRANSMISSIONS, MESSAGES, OR ENTRIES ON OR IN CONNECTION WITH THE SITE; OR (B) ANY INCORRECT INFORMATION ASSOCIATED WITH ANY TRANSACTION OR TRANSMISSION ON OR TO THE SITE REGARDLESS OF WHETHER SUCH INCIDENT IS THE RESULT OF USER ERROR, SYSTEM ERROR, OR HUMAN ERROR. IN ADDITION, THE DRURY PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE DRURY PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE DRURY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE DRURY PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE DRURY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL THE DRURY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SITE; (B) YOUR CONTENT; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE DRURY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE SITE; OR (G) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE DRURY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE DRURY PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00). YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF DRURY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT OR SERVICE OWNED OR CONTROLLED BY THE DRURY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT OR SERVICE OWNED OR CONTROLLED BY THE DRURY PARTIES.
No Third Party Beneficiaries
Except as may be expressly stated elsewhere by Drury, nothing expressed or implied in these Terms is intended to confer upon any person other than the parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
Location and Territorial Restrictions
The information provided through the Site and the Site itself are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We control and operate the Site from offices located in the United States and make no representations or warranties that the use of the Site are appropriate for use or access in other locations. Anyone using the Site from other locations does so on their own initiative and is responsible for compliance with United States’ and local laws regarding online conduct and acceptable content, if and to the extent such laws apply. We reserve the right to limit the availability of the Site or any portion of the Site, to any person, geographic area, or jurisdiction, at any time and in our sole and absolute discretion, and to limit the quantities of any content, program, product, service or other feature that we provide. Software related to or made available by the Site may be subject to United States export controls. Thus, no software from the Site may be downloaded, exported or re-exported: (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
If a dispute arises between you and Drury, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES.
Accordingly, you agree that we will resolve any claim or controversy at law or equity that relates to or arises out of these Terms or the Site (a “Claim”) in accordance with the subsections below.
- General. You and Drury agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof (collectively, “Disputes”) will be settled by binding arbitration; except that either party retains the right to bring an individual action in small claims court. You acknowledge and agree that you and Drury are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Drury otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Legal Disputes/Arbitration” section will be deemed void. This “Legal Disputes/Arbitration” section will survive any termination of these Terms. Notwithstanding the foregoing, each party reserves the right to seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights or breach of the Your Content provisions of these Terms (collectively, “Excluded Disputes”).
- Arbitration Rules, Governing Law, Jurisdiction and Venue. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section of these Terms. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. These Terms and any action related thereto will be governed by the laws of the State of Missouri without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action taken in a small claims court as contemplated by these terms will be the courts located in St. Louis County and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
- Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules (The AAA provides form Demands for Arbitration at www.adr.org). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Missouri and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
- Arbitration Location and Procedure. Unless you and Drury otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Drury submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
- Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the Limitation of Liability section of these Terms as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Drury will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
- Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Drury will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
- Changes. If Drury changes this Legal Disputes/Arbitration section, you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Effective Date” date. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Drury in accordance with the provisions of this Section as of the date you first accepted these Term (or accepted any subsequent changes to these Terms).
- Venue. You agree that any action at law or in equity relating to the arbitration provision of these Terms or the Excluded Disputes will be filed only in the state or federal courts located in St. Louis County, Missouri and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
In our sole and absolute discretion, we may assign these Terms without notice to you. You may not assign these Terms without our prior written consent.
The waiver by either party of any breach of these Terms will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. Neither a course of dealing or conduct between you and us nor any trade practices shall be deemed to modify these Terms.
If any provision of these Terms is found to be unenforceable or contrary to law, such provision will be modified to the least extent necessary to make it enforceable, and the remaining portions of these Terms will remain in full force and effect.
Our Right to Update These Terms
We reserve the right to modify or add to these Terms at any time without prior notice (“Updated Terms
”). You agree that we may notify you of the Updated Terms by posting them on the Site so that they are accessible via a link on the home page, and that your use of the Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using the Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Site from that point forward.
These Terms constitute the entire agreement between you and Drury with respect to your use of the Site and supersedes all prior agreements, proposals, negotiations, representations or communications.