These Astronomy Party Terms of Service (the “Terms of Service” or the “Terms”) constitute a legally binding agreement between the User (defined below) of the Platform (defined below) (“you” or “your”) and CosmoView Inc. a North Carolina Corporation dba Astronomy Party and AstronomyParty.com. (together with its Affiliates (defined below), (“Astronomy Party”, “we”, “us” or “our”) governing your use of Astronomy Party’s websites, mobile applications and related services, information and communications (collectively referred to herein as the “Platform” or the “Astronomy Party Platform”).
The use of all personal data you submit to the Platform or which we collect about you is governed by our Privacy Policy.
BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR ACCESSING AND USING THE PLATFORM, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY (WITHOUT LIMITATION OR QUALIFICATION), THE AGREEMENT (INCLUDING, ALL TERMS INCORPORATED HEREIN BY REFERENCE).
IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT AND ABIDE BY ITS TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
The Platform is an online web- and app-based two-sided marketplace which enables connections between Clients and Providers. “Client(s)” are individuals and/or businesses seeking to host or participate in astronomical viewing parties, events and/or lessons (“Event(s)”), and “Provider(s)” are businesses seeking to perform Events for Clients. Clients and Providers are referred to herein together as “User(s)”.
Providers are independent business owners, providing services under their own name or business name (and not under Astronomy Party’s name), using their own tools and supplies. Providers choose the applicable rates for Events, without deduction by Astronomy Party. Providers may (a) maintain a clientele without any restrictions from Astronomy Party; (b) offer and provide their services elsewhere, including through competing platforms; and (c) accept or reject Clients and Service Agreements (defined below). Providers are independent contractors of Clients, and Clients are therefore clients of Providers, not Astronomy Party.
Any reference to a Provider being licensed or credentialed in some manner, or being “badged”, “reliable”, “reliability rate”, “elite”, “great value”, “background checked”, “vetted” (or similar language) indicates only that the Provider has completed a relevant user account registration process or met certain criteria and does not, and shall not be deemed to, represent anything else. Any such description: (i) is intended to be useful information for Clients to evaluate when they make their own decisions about the identity and suitability of Providers whom they select or interact, or contract with via the Platform; and (ii) is not an endorsement, certification or guarantee by Astronomy Party of a Provider’s skills or qualifications or whether they are licensed, insured, trustworthy, safe or suitable.
Notwithstanding any feature or service of the Platform that a Client may use to expedite Provider selection, the Client is responsible for determining the Event and selecting or otherwise approving their Provider and should undertake their own research prior to booking any Event to be satisfied that a specific Provider has the right qualifications.
The Platform is not an employment agency service or business, and Astronomy Party is not an employer of any User. Users are not employees, partners, representatives, agents, joint venturers, independent contractors or franchisees of Astronomy Party.
Users hereby acknowledge and agree that (a) Astronomy Party does not (i) host Events nor employ individuals to host Events, (ii) supervise, scope, direct, control or monitor Providers’ work (including that Astronomy Party does not set Providers’ work locations, work hours, or terms of work), nor provide tools or supplies to, or pay any expenses of, Providers, or (iii) have any control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Events or Users (or the acts or omissions thereof), nor of the integrity, responsibility, competence, qualifications, communications, or the ratings or reviews provided by Users with respect to each other; and (b) the formation of a Service Agreement will not, under any circumstances, create any responsibility or liability for Astronomy Party, nor any employment or other relationship between Astronomy Party and the Users or between the Client and the Provider. Users do not have authority to, and may not act as agent for, nor bind or make any representations on behalf of, Astronomy Party.
Astronomy Party is neither responsible nor liable for workers’ compensation or any tax payment or withholding, including but not limited to applicable sales taxes, HST/QST/GST/PST, unemployment or employment insurance, Canada Pension Plan, disability insurance, applicable VAT, National Insurance, employer’s liability, employer training tax, social security contributions, PAYE or other applicable payroll withholdings in connection with a User’s use of the Platform, or personal income tax. The Provider assumes full and sole responsibility for all required and applicable income tax and social contributions such as Social Security or National Insurance Contribution withholdings as to the Provider and all persons engaged by the Provider in the performance of the Event Services. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Subject to your compliance with the terms of the Agreement (including, without limitation, these Terms and Astronomy Party’s Acceptable Use Policy, Astronomy Party grants you a limited, non-exclusive, non- transferable and revocable license to (a) access and use the Platform (in the locations and territories where the Platform has a presence), (b) download, access and use the App on your personal device, solely in furtherance of your use of the Platform, and (c) access and view any content, information and materials made available on the Platform, in all cases for your personal use and the intended purpose of the Platform. All Users are subject to, and agree to comply with, the Acceptable Use Policy in their use of the Platform. Users may not copy, download, use, redesign, reconfigure, reverse engineer or retransmit the Platform or anything therefrom or thereon (in whole or in part) without Astronomy Party’s prior written consent. Any rights not granted by Astronomy Party are expressly reserved.
In your access to and use of the Platform, you represent and warrant that you:
If you are a Provider, you additionally represent and warrant that, in your access to and use of the Platform, you:
You must register and create an account to access and use the Platform, providing only correct and accurate information (such as, without limitation, your name, business name, mailing address, email address, and/or telephone number). You agree to immediately notify Astronomy Party of any changes to your account information. Failure to provide and maintain updated and accurate information may result in your inability to use the Platform and/or Astronomy Party’s termination of this Agreement with you. Astronomy Party may restrict anyone from completing registration if Astronomy Party determines such person may threaten the safety and integrity of the Platform, or if such restriction is necessary to address any other reasonable business concern.
You are fully and solely responsible for (a) maintaining the confidentiality of any log-in, password, and account number provided by or given to you to access the Platform; and (b) all activities that occur under your password or account, even if not authorized by you. Astronomy Party has no control over any User’s account. You agree to notify Astronomy Party immediately if you suspect any unauthorized party may be using your Platform password or account or any other breach of security.
(i) Background Checks. To the extent permitted by applicable law, Providers may be subject to a review process before they can register on, and during their use of, the Platform, which may include, but is not limited to, identity verification and criminal background checks, using third party services as appropriate. If a Provider, to the extent permitted under applicable law, you agree to undergo such Background Checks. Astronomy Party cannot, and does not, assume any responsibility or liability for the accuracy or reliability of Background Check information, nor for any false or misleading statements made by Users of the Platform.
(ii) Licensing. Astronomy Party does not independently verify that Providers have the necessary expertise, or have obtained any licenses, permits, or registrations required, to perform their Events. It may be unlawful to perform certain types of Events without a license, permit and/or registration, and performing same may result in law enforcement action and/or penalties or fines. Providers are solely responsible for avoiding such prohibited Events. If you have questions about how national, state, provincial, territorial and/or local laws apply to your Events on the Platform, you should first seek appropriate legal guidance. Clients are solely responsible for determining if a Provider has the skills and qualifications necessary to perform the specific Event and confirming that the Provider has obtained all required licenses, permits, or registrations, if any. Clients may wish to consult their national, state, provincial, territorial and/or local law requirements to determine whether certain Events are required to be performed by a licensed or otherwise registered professional.
The Platform allows Users to offer, search for and book Events. After identifying and selecting a Provider to perform a Event, the Client and the Provider may communicate via the chat thread in the Platform to understand the scope, schedule and other details of the Event (including, without limitation, any specific hazards, obstacles, or impediments in the Event location (whether visible or concealed) that may impact the performance of the Event). Once the Event is scheduled via the Platform by the Provider, the Client and Provider form a legally binding contract for the Event, which includes the engagement terms proposed and accepted, and any other contractual terms agreed to, by the Client and the Provider in the Chat Thread for the Event (“Service Agreement”). The Client and the Provider each agree to comply with the Service Agreement and the Agreement during the engagement, performance and completion of a Event. Providers are responsible for exercising their own business judgment in entering into Service Agreements and performing Events; and acknowledge that there is a chance for individual profit or loss. Astronomy Party is not a party to any Service Agreement. The formation of a Service Agreement will not, under any circumstances, create any responsibility or liability for Astronomy Party.
All amounts owed and/or to be paid by the Client shall be set out using the Platform as agreed and confirmed using the Platform between the Provider and Client. The Client automatically authorizes the PSP to process payment 24 hours prior to the schedule event. Unless otherwise expressly stated in this Agreement, all fees (including, without limitation, the Event Payment and all Astronomy Party fees) are non-refundable.
Payments to Providers for Event fees collected from Clients will be reduced by (1) Astronomy Party Platform fees, (2) PSP transaction fees and (3) sales taxes if applicable.
All amounts owed and/or to be paid by any User must be paid through the PSP. The Client will be required to provide their payment method details to Astronomy Party and/or the PSP. The Provider will be required to set up an account with the PSP, which requires registration with the PSP, consent to the terms of service of the PSP (the “PSP Services Agreement”), and completion of a vetting process and/or account validation. Astronomy Party is not a party to any PSP Services Agreement, and has no obligations, responsibility or liability to any Provider or other party under any PSP Services Agreement.
Users of the Platform may be liable for taxes or similar charges (including VAT, if applicable in the country where the Event is performed), which are imposed on the Events performed and/or fees paid under the Agreement and must be collected and/or paid.
In certain jurisdictions, applicable rules require that we collect and/or report tax and/or revenue information about you to applicable tax authorities. You agree that Astronomy Party may issue, on your behalf, receipts or similar documentation to facilitate accurate tax reporting, and use of your account may be paused until such documentation is provided.
Notwithstanding anything herein to the contrary, however:
Clients may cancel an Event for any reason up to twenty-four (24) hours before the start of the event without obligation.
Clients may request a refund of an Event minus any PSP fees provided that such request is made within five (5) calendars days of the Event’s completion for the following:
Notwithstanding the above, refunds will be approved or denied in Astronomy Party’s sole and absolute discretion. The existence of this Refund Policy in no way alters, changes or obviates Astronomy Party’s position with respect to transactions executed through the Platform as explained in detail in 1(B) above. Astronomy Party assumes no liability for the actions of Providers through this Refund Policy and to the maximum extent permitted by law disclaims any and all liability for refunding or not refunding Event fees
All amounts paid from or on behalf of Clients for Events will be held by Astronomy Party for ten (10) days to allow for processing of Client payment and refund requests. After this ten (10) holding period, any earned fees will be available for the Provider to claim on the Platform.
Provider agrees to accept Astronomy Party’s decisions on Client refund requests as final. To the extent permitted by law, Provider waives any and all claims related to Astronomy Party’s Refund Policy and/or processing of claims therein.
If a chargeback is initiated by the user after a payout has already been made to the Provider, and the dispute is lost, the Provider agrees to reimburse Astronomy Party for the full disputed amount. Astronomy Party may withhold future payouts or pursue other remedies to recover such losses.
Currently, platform fees are included in the total amount paid by the customer at the time of booking. Astronomy Party may, in the future, revise its platform fee structure and/or introduce small, reasonable service fees payable by the Provider to support ongoing platform operations, maintenance, and third-party partner costs. Any such changes will be communicated in advance, and continued use of the Platform will signify acceptance of the updated terms.
All payments made through the Astronomy Party Platform are final and non-refundable, except as outlined in Section 3(F) Refund Policy. Users agree not to initiate chargebacks or payment disputes without first contacting Astronomy Party to seek resolution.
If a chargeback is initiated without prior communication, or in violation of our refund policy, Astronomy Party reserves the right to suspend or terminate the user’s account, deny future access to the Platform, and take legal action to recover the disputed amount.
Astronomy Party may dispute the chargeback on behalf of the Provider and/or itself by submitting documentation to the payment processor. Users agree that in such cases, the decision of the issuing bank or payment processor shall be final.
In the event a chargeback is successful after the payout has been released to the Provider, Astronomy Party reserves the right to recover the disputed amount from the Provider’s future payouts or through other means allowed by law.
The Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, Event postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum.
You understand that all submissions made to Public Areas will be public, and you will be publicly identified by your name or login identification when communicating in Public Areas. Astronomy Party will not be responsible for the actions of any Users with respect to any information or materials posted or disclosed in Public Areas.
In the event of an actual or suspected breach by you of any part of the Agreement (including, without limitation, abuse, fraud or interference with the proper working of the Platform) or as a Provider you are subject to an excessive number of approved refunds or failure to maintain at least a 2 star rating, Astronomy Party may (a) suspend your right to use the Platform pending its investigation; and/or (b) deactivate your account or limit your use of the Platform upon its confirmation of a breach. Astronomy Party will provide you with written notice of its determination in accordance with, and as required by, applicable laws.
If Astronomy Party suspends or deactivates your account or limits your use of the Platform, you may not register and/or create a new account under different usernames, identities or contact details (whether under your or any other name or business name), even if you are acting on behalf of a third party.
You may terminate the Agreement between you and Astronomy Party at any time by ceasing all use of the Platform and deactivating your account. Astronomy Party may terminate the Agreement between you and Astronomy Party at any time, and cease providing access to the Platform if you breach any part of the Agreement or violate applicable laws.
Even after your right to use the Platform is suspended, terminated or limited, the Agreement will remain enforceable against you. Astronomy Party reserves the right to take appropriate legal action pursuant to the Agreement.
“User Generated Content” is defined as any information, content and materials (including any videotape, film, recording, photograph, voice) you provide to Astronomy Party, its agents, Affiliates, and corporate partners, or other Users in connection with your registration for and use of the Platform (including, without limitation, the information and materials posted or transmitted for use in Public Areas).
User Generated Content is not the opinion of, and has not been verified or approved by, Astronomy Party. You acknowledge and agree that Astronomy Party: (a) is not involved in the creation or development of User Generated Content and does not control any User Generated Content; (b) is not responsible or liable for any User Generated Content (including any accuracy, or results obtained by the use, thereof or reliance thereon); (c) may, but has no obligation to, monitor or review User Generated Content; and (d) reserves the right to limit or remove User Generated Content if it is not compliant with the terms of the Agreement.
You are and remain solely responsible and liable for your User Generated Content. To the extent permitted by law, you hereby grant Astronomy Party, for the full duration of all rights that may exist in the User Generated Content (including any legal extensions thereof), a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid, unrestricted, sublicensable (through multiple tiers), transferable right and license to publish, reproduce, disseminate, transmit, distribute, modify, adapt, publish, translate, create derivative works from, publicly perform, exhibit, display (in whole or in part), act on and/or otherwise use your User Generated Content, in any media, form or technology now known or later developed, including (without limitation) in connection with any advertising, marketing, and/or publicizing of the Platform, without any approval by, or compensation to, you.
The Platform hosts User Generated Content relating to reviews and ratings of specific Providers (“Feedback”), which enables Users to post and read other Users’ expressions of their experiences. Feedback is the opinion of the User who has posted it. Feedback is not the opinion of, and has not been verified or approved by, Astronomy Party. Astronomy Party does not evaluate Users. Astronomy Party may, but is not obligated to, investigate, modify and/or remove any Feedback or other remarks posted by Users.
The Platform, and all components thereof and content made available and/or displayed thereon (including the Marks (defined below), and all text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, typefaces, information, tools, designs, interfaces and other content (including the coordination, selection, arrangement, and enhancement of, and any and all intellectual property rights in and to, the foregoing (collectively “Proprietary Material”)), is owned by Astronomy Party, excluding User Generated Content and any third-party websites made available on or via the Platform. Proprietary Material is protected, in all forms, media and technologies now known or hereinafter developed, by domestic and international laws, including those governing copyright, patents, and other proprietary and intellectual property rights. Any use of the Proprietary Material other than as permitted in the Agreement is expressly prohibited.
The service marks, logos and trademarks of Astronomy Party (the “Marks”), including without limitation those for Astronomy Party and Astronomy Party for Good, are owned by Astronomy Party. The Marks are not available for use by Providers. You may not copy or use the Marks without obtaining Astronomy Party’s express prior written consent. Any other trademarks, service marks, logos and/or trade names appearing on the Platform are the property of their respective owner and may not be used without the prior written consent of such owner.
Use Of The Platform Is Entirely At Your Own Risk
THE PLATFORM AND THE TECHNOLOGY UNDERLYING IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE, AND/OR NON-INFRINGEMENT), AND THE SAME ARE EXPRESSLY EXCLUDED.
WITHOUT LIMITING THE FOREGOING, ASTRONOMY PARTY AND ITS PARENTS, AFFILIATES, LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS:
United states federal law and some states, provinces, and other jurisdictions do not allow the exclusion of and/or limitations on certain implied warranties, so the above exclusions and/or limitations may not apply to you. These terms give you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations under these terms will not apply to the extent prohibited by applicable law.
You acknowledge and agree that Astronomy Party is only willing to provide the Platform if you agree to certain limitations of our liability to you and third parties, as set out in this Section and elsewhere in the Agreement.
THEREFORE, YOU ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE ASTRONOMY PARTY PARTIES OR THEIR CORPORATE PARTNERS BE RESPONSIBLE OR LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE) FOR, AND SUCH PARTIES EXPRESSLY DISCLAIM, ANY AND ALL LIABILITY, CLAIMS, DEMANDS, DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION AND THE COST OF SUBSTITUTE PRODUCTS OR SERVICES), EXPENSES (INCLUDING ATTORNEYS’ FEES AND COSTS), LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS, AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (COLLECTIVELY, “LIABILITIES”) ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH THE PLATFORM OR YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE THE ASTRONOMY PARTY PARTIES AND THEIR CORPORATE PARTNERS FROM THE FOREGOING.
Nothing in the Agreement excludes or limits any liability or warranty that, by applicable law, may not be limited or excluded. Additionally, some jurisdictions do not allow the exclusion of certain warranties or limitation of incidental or consequential damages; in such cases the above limitations may not apply to you in their entirety.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT THE ASTRONOMY PARTY PARTIES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED: (A) IF YOU ARE A CLIENT, THE TOTAL FEES PAID BY YOU TO ASTRONOMY PARTY IN THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE; AND (B) IF YOU ARE A PROVIDER, THE TOTAL EVENT PAYMENTS PAID TO YOU BY CLIENTS IN THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Users’ indemnification obligations are set out below in this Section. Astronomy Party reserves the right, in its own sole discretion, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Astronomy Party.
If you are a Client, you shall indemnify, defend, and hold harmless Astronomy Party and Affiliates from and against any and all Liabilities incurred in connection with (i) your use of, inability to use, or participation on, the Platform; (ii) your breach or violation of the Agreement; (iii) your violation of any law, or the rights of any User or third party; (iv) your use of any third-party links or websites that appear on the Platform; (v) any User Generated Content and/or Feedback submitted by you or using your account to the Platform, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; and (vi) the acts or omissions of any Client Agents.
If you are a Provider, you shall indemnify, defend, and hold harmless Astronomy Party and Affiliates from and against any and all Liabilities incurred in connection with (i) your use of, inability to use, or participation on, the Platform; (ii) your participation in Events, or your ability or inability to perform Events or to receive payment therefor; (iii) your breach or violation of the Agreement; (iv) your violation of any law, or the rights of any User or third party; (v) any User Generated Content and/or Feedback submitted by or about you or using your account to the Platform, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; and (vi) the acts or omissions of any Provider Assistants.
To expedite resolution and reduce the cost of any dispute, controversy or claim related to, arising from or regarding your use of the Platform, your relationship with Astronomy Party, Events, or the Agreement (including previous versions), (“Dispute”), you can try to find an amicable solution with Astronomy Party before initiating any out of court settlement (such as mediation or arbitration) or court proceeding (except as may be set forth in Section 24). Such informal negotiations will commence upon written notice. Your address for such notices is the one associated with your account, with an email copy to the email address you have provided to Astronomy Party. Astronomy Party’s address for such notice is nilesh.choudhary@astronomyparty.com.
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND ASTRONOMY PARTY CAN BRING CLAIMS COVERED BY THIS ARBITRATION AGREEMENT. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND ASTRONOMY PARTY TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND ASTRONOMY PARTY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL DISPUTES OR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act (“FAA”) and survives the termination of the Agreement and your relationship with Astronomy Party.
To the fullest extent permitted by applicable law, you and Astronomy Party agree to arbitrate any and all disputes and claims (the “Claim(s)”) relating to, arising from or regarding your use of the Platform, your relationship with Astronomy Party, Events, or the Agreement (including previous versions), including Claims by Astronomy Party, Claims against Astronomy Party and Claims against Astronomy Party’s Affiliates (including its parent company).
To the fullest extent permitted by applicable law, this includes, but is not limited to, claims related to payments, any city, county, state or federal wage and hour law, compensation, meal or rest breaks, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, personal injury, property damage or loss, emotional distress, any promotions or offers made by Astronomy Party, or the threatened or actual suspension or deactivation of your account; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; claims arising under the Fair Labor Standards Act, Civil Rights Act, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Astronomy Party and covered by the Employee Retirement Income Security Act or funded by insurance), and state or local statutes, if any, addressing the same or similar subject matters; and all other federal, state or local statutory and common law claims.
If there is a dispute about the arbitrability of any claim (including about the formation, scope, applicability, interpretation, validity, and enforceability of this Arbitration Agreement), you and Astronomy Party agree that this threshold dispute shall be resolved by the arbitrator, except as expressly provided below. To the extent that any third-party beneficiary to this Agreement brings claims against a party, those claims shall also be subject to this Arbitration Agreement. If either party brings both arbitrable and non-arbitrable claims in the same action or related actions, both agree that the non- arbitrable claims shall be stayed until the conclusion of the arbitration, to the fullest extent permitted by law.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND ASTRONOMY PARTY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES AND CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES THAT, BY THE TERMS OF THIS ARBITRATION AGREEMENT, ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
Except as otherwise required under applicable law, you and Astronomy Party agree that any arbitration will be limited to the Claim between Astronomy Party (and/or, if applicable, its Affiliates) and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND ASTRONOMY PARTY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and Astronomy Party 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. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis.
Notwithstanding any other provision of the Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party. The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in the Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules. You and Astronomy Party agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within 30 days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, the parties will have the opportunity for reasonable discovery of non- privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law and will honor all claims of privilege recognized by law. Claims will be governed by their applicable statute of limitations and failure to demand arbitration within the prescribed time period shall bar the Claims as provided by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules.
The Arbitration Agreement shall not require arbitration of the following types of claims:
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or a similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. The Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in subsections (b) and (c), in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Astronomy Party reserves the right, for justifiable and proportionate reasons, at any time, to review, change, modify, update, add to, supplement, suspend, discontinue, or delete any term(s) or provision(s) of the Agreement (including the Terms of Service, Privacy Policy and/or Acceptable Use Policy).
Notice of such amendments may be given by posting such updates or modifications (or notice thereof) on the Platform, on the online location of the relevant terms, policies or supplemental terms, by e-mail or in any other reasonable manner; and the amendments will be effective upon such posting. Your continued use of the Platform after such posting constitutes your consent to be bound by the Agreement, as amended.
Notwithstanding the foregoing, if such modifications and/or updates are material, you will be informed in advance (in the manner set out in this Section) for your acceptance or rejection. If any changes to the Agreement are unacceptable to you or cause you to no longer be in compliance with the Agreement, the previous Terms will apply to your current Events, but you will not be able to use the Platform or contract new Events and you must deactivate your account, and immediately stop using the Platform. After notifying you of any material changes, your continued use of the Platform following any revision to the Agreement constitutes your complete and irrevocable acceptance of any and all such changes, except where prohibited by any laws or regulations in your jurisdiction.
To the extent permitted by law, Astronomy Party shall not be liable to you for any modification to all or any portion of the Agreement.
Astronomy Party reserves the right to, at any time, review, improve, modify, update, upgrade, discontinue, impose limits, or restrict access to, whether temporarily or permanently, all or any portion of the Platform (including any content or information available on or through the Platform), effective with prior notice (where possible) and without any liability to Astronomy Party. To the extent permitted by law, Astronomy Party shall not be liable to you for any updates, upgrades, modifications to or discontinuance of all or any portion of the Platform.
By installing the App(s), you consent to the installation of the App(s) and any updates or upgrades that are released through the Platform. The App (including any updates or upgrades) may (i) cause your device to automatically communicate with Astronomy Party’s servers to deliver the App functionality and to record usage metrics, (ii) affect App-related preferences or data stored on your device, and/or (iii) collect personal information as set out in our Privacy Policy. You can uninstall the App(s) at any time.
Unless otherwise specified in the Agreement, all agreements, notices, disclosures and other communications (collectively, “Notices”) under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day it is shown as delivered by the overnight delivery service’s tracking information, if sent for next day delivery by a recognized overnight delivery service. Notwithstanding the foregoing, any Notices to which the Agreement refers will be sent to you electronically (including, without limitation, by email or by posting Notices on the Sites), and you consent to receive Notices in this manner. All notices that we provide to you electronically satisfy any legal requirement that such communications be in writing.
By using the Platform, you agree (a) to transact electronically through the Platform; (b) your electronic signature is the legal equivalent of your manual signature and has the same legal effect, validity and enforceability as a paper-based signature; (c) your use of a keypad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing; and (d) no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
The Agreement and your use of the Platform will be governed by, and will be construed under, the laws of the State of North Carolina and applicable Federal Law.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship exists, is intended or created between you and Astronomy Party by the Agreement or your use of the Platform. Users do not have authority to act as agent for, nor to bind or make any representations on behalf of, Astronomy Party.
The Agreement (including any terms linked to in, and incorporated by reference into, these Terms) constitutes the complete and exclusive agreement between you and Astronomy Party with respect to your use of the Platform, and supersedes any and all prior or contemporaneous agreements, proposals or communications, except as otherwise specified in the Arbitration Agreement.
Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” provision below, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable, or (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. Failure by Astronomy Party to enforce any provision(s) of the Agreement will not be construed as a waiver of any provision or right.
You hereby acknowledge and agree that we may assign or transfer the Agreement without your consent. In any case, this assignment will be notified to the User who, in the event legally foreseen, may terminate the Agreement and cease use of the Platform. Upon the effective date of the assignment of the Agreement (a) Astronomy Party shall be relieved of all rights, obligations and/or liabilities to you arising in respect of events postdating the effective date of the assignment, and (b) the assignee entity shall replace Astronomy Party for the performance of the Agreement. You may not assign or transfer the Agreement without our prior written approval. Any assignment in violation of this Section shall be null and void. The Agreement will inure to the benefit of Astronomy Party, its successors and assigns. All parts of the Agreement which, by their nature, should survive the expiration or termination of the Agreement shall continue in full force and effect subsequent to, and notwithstanding, the expiration or termination of the Agreement or your use of the Platform.
The Agreement, in whole and in part, is drawn up in English. In case of discrepancies between the English text version of the Agreement (in whole or in part) and any translation of the Agreement, the English version shall prevail.
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE, AS WELL AS THE PRIVACY POLICY, THE AUP, ALL OTHER TERMS INCORPORATED HEREIN AND THEREIN BY REFERENCE, AND AGREE THAT MY USE OF THE PLATFORM IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.
This Astronomy Party Platform Acceptable Use Policy (this “AUP”) forms a part of Astronomy Party’s Terms of Service (the “Terms”). Capitalized terms used, but not defined, in this AUP will have the definitions as set out in the Terms. This AUP establishes additional conditions that apply to your use of the Platform. Users must comply with this AUP in their use of the Platform.
Without limitation, you may not use the Platform, and you may not permit any third party, to:
Additionally, you may not, and you may not permit any third party to: