Last updated: 10/8/19
This Terms of Service Agreement (“Agreement” or “Terms”) is a legal agreement between you and Mysteries Inc. (“Mysteries”, “we”, or “us”). By accessing or using the Mysteries website, currently located at trymystery.com (the “Site”) or any apps or other services offered or operated by Mysteries, or booking or participating in any Mystery Experience (defined below) (collectively, the “Mystery Platform” or the “Services”), you agree to comply with and be bound by these Terms.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH MYSTERIES ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Scope of the Services
The Mystery Platform is an online service that assists its registered users (each a “Guest”) in planning and scheduling one-time activities based on the Guest’s identified interests without revealing the activity until the adventure begins (each a “Mystery Experience”). In order to facilitate Mystery Experiences, Mysteries works with third parties that provide various services (“Third-Party Service Providers”) such as restaurants, bars, entertainment providers, ride-share or other transportation services and other third-party services (collectively, “Third-Party Services”). Mysteries does not itself provide such services and is not affiliated with any Third-Party Service Providers that provide the Third-Party Services. Mysteries has no control over, and does not guarantee, the existence, quality, safety, suitability or legality of the Third-Party Services. The use of any Third-Party Services in connection with the Mystery Platform or the Mystery Experiences is not an endorsement or sponsorship of the Third-Party Services or the Third-Party Service Providers.
Eligibility to Use the Services
In order to use the Mystery Platform and purchase and participate in Mystery Experiences, you (and all of your guests who will join you on your Mystery Experiences) must be at least 18 years of age. Some Mystery Experiences may have other age requirements (e.g., facilities or events restricted to individuals of legal drinking age) and you acknowledge and agree that you are solely responsible for complying with all such age requirements. By using the Mystery Platform and purchasing or participating in Mystery Experiences, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
Accounts and Security
In order to access and use certain Services, you may be asked to register and create a user account (an “Account”). As part of the Account creation process, you will create login credentials by providing an email address, cell phone number, and answering all inquiries marked “required” (collectively, the “Registration Data”). You agree: (i) that the Registration Data you provide will be true, accurate, current and complete at the time you provide it; (ii) to maintain and update such Registration Data to keep it true, accurate, current and complete; and (iii) that Mysteries may contact you and require you to confirm some or all of your Registration Data before you are able to use, or continue using, the Services. We reserve the right to terminate the limited licenses granted to you and to refuse to provide you with any and all current or future use of the Services if, in our sole discretion, we determine or are of the opinion that any of your Registration Data is, or appears to be, untrue, inaccurate, not current or incomplete.
You are responsible for maintaining the confidentiality of your Account credentials, and for all activities, charges and/or liabilities that occur from your Account, whether or not authorized by you. You agree that you will not share your login credentials, or transfer, sub-license, sell or assign your rights in your Account to any other person or entity. You must immediately notify Mysteries of any unauthorized use of your Account, login credentials, or any other breach of security of which you become aware by emailing us at email@example.com. We will not be liable for any loss or damage arising from your failure to comply with this section.
You agree that Mysteries may contact you by email, telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with your Account and the Services (e.g., to coordinate pick-up times).
Mysteries maintains a Privacy Notice describing the collection, retention, and use of information related to your use of the Services. You can find the Privacy Notice, which is incorporated by reference into this Agreement, at https://trymystery.com/privacy .
Use of the Services
Subject to your compliance with these Terms, Mysteries grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Site and the Services solely for your personal and non-commercial use. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Mysteries or its licensors, except for licenses and rights expressly granted in these Terms.
Mysteries may revoke or terminate the license granted above in its sole discretion at any time. Without limiting the generality of the foregoing, we may revoke or terminate the license if you: (i) breach any obligation in this Agreement or in any other agreement between you and us; (ii) violate any policy or guideline applicable to the Services; or (iii) use the Services other than as specifically authorized in this Agreement, without our prior written permission.
You are solely responsible for compliance with any and all laws, rules, and regulations that may apply to your use of the Services and your participation in Mystery Experiences. In connection with your use of the Mystery Platform, you will not and will not assist or enable others to:
Information Submitted and User License
In addition to the Registration Data, in order to use the Services and/or purchase and participate in Mystery Experiences, you may be required to provide additional information about you, and guests that will accompany you, such as birth date, interests, and any physical, medical, dietary or other limitations or restrictions that may limit or prevent you or your guests from safely participating in certain activities (collectively, “Guest Information”). You represent and warrant that all Guest Information you provide will be accurate, current and complete at the time you provide it. If any Guest Information you provide is later determined to be inaccurate, incomplete or false, or is later changed, you will promptly notify Mysteries of all such changes. You are solely responsible for, and assume all liability regarding, the Guest Information you provide to Mysteries.
To enable Mysteries to use your Guest Information and Registration Data for the purposes described in the Privacy Notice, including without limitation to enable Mysteries to provide the Services to you, you grant to Mysteries a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable, right and license to exercise the copyright, publicity, database and other rights you may have in your Guest Information and Registration Data, and to use, copy, perform, display and distribute such information, to prepare derivative works or incorporation into other works such information, in any media now known or not currently known. Mysteries does not assert any ownership over your Guest Information or Registration Data; rather, as between you and Mysteries, subject to the rights granted to us in this Agreement, you retain full ownership of all of your information and any intellectual property rights or other proprietary rights associated with your information.
Mysteries may, at its sole discretion, enable users to create, upload, post, send, receive and store content, such as text, photos, audio, video or other materials and information on or through the Services (collectively, “User Content”). By creating, uploading, posting, sending, receiving, storing, or otherwise making available any User Content on or through the Services, you grant to Mysteries a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to such User Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such User Content to provide and/or promote the Services in any media or platform. Insofar as User Content includes personal information, such User Content will only be used for these purposes if such use complies with applicable data protection laws in accordance with our Privacy Notice.
You are solely responsible for all User Content that you make available on or through the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available on or through the Services or you have all rights, licenses, consents, and releases that are necessary to grant to Mysteries the rights in and to such User Content as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Mysteries’ use of the User Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Payments and Cancellations
Pricing and Payment
Pricing for the Mystery Experiences, including but not limited to transportation costs, food and drink costs, event fees, and other costs as applicable (collectively, the “MysteryExperience Fee”) is determined based on the price range option selected by you at the time a Mystery Experience is booked via the Mystery Platform. Note that you may be required to pay Third-Party Service Providers for Third-Party Services directly in some instances. In consideration for the use of the Services, Mysteries may add a charge to the Experience Fee (the “Service Fee”). The total of the Mystery Experience Fee and the Service Fee, together with any other additional fees as charged by the Third-Party Service Providers are the “Fees”.
At the time of booking the Mystery Experience, you will be required to provide payment method information (e.g., credit card information or other payment method that Mysteries accepts or may in the future accept). At the conclusion of the Mystery Experience, the Fees for the Mystery Experience will be charged to the payment method provided by you at the time the Mystery Experience was booked and an itemized receipt will be sent to the email address you provided. You agree to pay for all Fees, plus any applicable taxes, for your Mystery Experience. You authorize us to charge your chosen payment method for those Fees without further consent or notice. You authorize us, or a third-party working on our behalf, to collect and store that payment method, along with other related transaction information. The terms of your payment will be based on your payment method and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen method of payment (your “Payment Provider”). If your purchase results in an overdraft or other fee from your banking institution, you are responsible for paying that fee. If we do not receive payment from your Payment Provider, you agree to pay all Fees due in connection with your Mystery Experience upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by credit card, we may re-submit the payment to your Payment Provider. You agree to immediately notify Mysteries of any change in your payment method information used for payment hereunder.
Cancellations With Full Refund: You may cancel a booked Mystery Experience and receive a full refund of amounts paid in connection with that Mystery Experience, provided that you provide notice of the cancellation to Mysteries at least two (2) days (measured by 24 hour periods) before the booked date of the Mystery Experience.
Cancellations Without Full Refund. Mysteries canceled within two (2) days but no less than one (1) day (measured by 24 hour periods) of the Mystery start time will be charged a $20 planning fee. Mysteries canceled within 24 hours of the Mystery start time will incur a charge of $50 per Mystery participant.
The Services, and all content published on or accessible through the Services, including without limitation, content made available by Mysteries and any content licensed or authorized for use by third parties (collectively, the “MysteriesContent”), may, in their entirety or in part, be protected by copyright, trademark and/or other laws of the United States and other countries. You acknowledge and agree that the Services and the Mysteries Content, including all associated intellectual property rights, are the exclusive property of Mysteries and/or its licensors or authorizing third parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or the Mysteries Content. All trademarks, service marks, logos, trade names, trade dress and any other source identifiers of Mysteries used on or in connection with the Services and the Mysteries Content (collectively, the “Marks”) are trademarks or registered trademarks of Mysteries in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Services or the Mysteries Content are used for identification purposes only and may be the property of their respective owners. Use of any third-party trademark is intended only to identify the trademark owner and its goods and services, and is not intended to imply any association between the trademark owner and Mysteries.
Third-Party Websites and Resources
Mysteries may, as a convenience to you, make links to third-party websites or resources available on or through the Services. Mysteries is not responsible in any way for, and does not make any representation, warranty, guarantee or endorsement regarding, any third-party websites and resources which may be accessed through the Services. In addition, Mysteries does not endorse or adopt, and is not directly or indirectly responsible or liable for: (i) any content, advertising, goods or services, or other materials available on or from such third-party websites or resources; or (ii) any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, advertising, goods, services or other materials on or available from such third-party websites or resources. You acknowledge your sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
Assumption of Risk and Disclaimers
Assumption of Risk
You acknowledge and agree that Mystery Experiences may carry inherent risk and by participating in Mystery Experiences, you choose to assume those risks voluntarily. For example, some Mystery Experiences may carry the risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in Mystery Experiences. You assume full responsibility for the choices you make before, during and after your participation in Mystery Experiences.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU KNOWINGLY, VOLUNTARILY AND FREELY ASSUME ALL RISKS, BOTH KNOWN AND UNKNOWN, OF PARTICIPATING IN EACH MYSTERY EXPERIENCE, INCLUDING EACH ACTIVITY IN YOUR MYSTERY EXPERIENCE, EVEN IF THOSE RISKS ARISE FROM THE NEGLIGENCE OR CARELESSNESS OF MYSTERIES, THIRD-PARTY SERVICE PROVIDERS OR OTHERS, OR DEFECTS IN THE EQUIPMENT, PREMISES, OR FACILITIES USED DURING THE MYSTERY EXPERIENCE, OR OTHERWISE, AND YOU ASSUME FULL RESPONSIBILITY FOR PARTICIPATION IN THE MYSTERY EXPERIENCE.
If you book a Mystery Experience on behalf of other guests, you will ensure, and you represent and warrant, that each guest on whose behalf you book has read and agreed to this assumption of risk, release and waiver, which shall apply to each of them as if the reference to “you” was a reference to her/him.
No Warranties. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, MYSTERIES PROVIDES THE SERVICES AND THE MYSTERY EXPERIENCES ON AN “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MYSTERIES AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF MYSTERIES IS ADVISED OF SUCH PURPOSE), AND IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NEITHER MYSTERIES NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (I) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, TRUTHFUL, COMPLETE, RELIABLE, OR ERROR FREE, (II) THAT THE SERVICES WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE, OR SECURE, (III) THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL PROPERTIES, (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES, (V) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR (VI) THAT THE MYSTERIES CONTENT IS NON-INFRINGING. NO INFORMATION OR ADVICE PROVIDED THROUGH THE SERVICES, BY MYSTERIES, OR BY MYSTERIES’ EMPLOYEES OR AGENTS SHALL CREATE ANY WARRANTY. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above limitations and exclusions may not apply to you.
Third-Party Services. Mysteries works with Third-Party Service Providers in order to facilitate the Mystery Experiences but does not itself provide the services and is not affiliated with any of the Third-Party Service Providers that provide the Third-Party Services. MYSTERIES HAS NO CONTROL OVER AND DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO (A) THE EXISTENCE, QUALITY, SAFETY, SUITABILITY OR LEGALITY OF THE THIRD-PARTY SERVICES, (B) THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY THE THIRD-PARTY SERVICE PROVIDERS OR THROUGH THE THIRD-PARTY SERVICES, OR (C) THE PERFORMANCE, CONDUCT, ACTS OR OMISSIONS OF THE THIRD-PARTY SERVICE PROVIDERS. YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL LOOK SOLELY TO THE THIRD-PARTY SERVICE PROVIDERS THAT PROVIDE THE THIRD-PARTY SERVICES, AND NOT MYSTERIES, WITH RESPECT TO ANY CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO THE THIRD-PARTY SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL MYSTERIES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANY INFORMATION, PRODUCTS OR SERVICES PROVIDED BY ANY THIRD PARTY.
Limitations of Liability
Limitations on Mysteries’ Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR PARTICIPATION IN ANY MYSTERY EXPERIENCE, REMAINS WITH YOU. NEITHER MYSTERIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR THE MYSTERY EXPERIENCES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, 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 (I) THESE TERMS, (II) THE USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, THE SERVICES, WHETHER PROVIDED BY MYSTERIES OR BY THIRD PARTIES, (III) THE USE OF OR INABILITY TO USE THE SERVICES FOR ANY REASON, (IV) YOUR COMMUNICATIONS, INTERACTIONS OR DEALINGS WITH, OR THE CONDUCT OF, THE THIRD-PARTY SERVICE PROVIDERS THAT PROVIDE THE THIRD-PARTY SERVICES IN CONNECTION WITH ANY MYSTERY EXPERIENCE, OR (V) YOUR PARTICIPATION IN ANY MYSTERY EXPERIENCE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MYSTERIES HAS 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.
IN NO EVENT WILL MYSTERIES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, YOUR USE OR INABILITY TO USE THE SERVICES, OR YOUR PARTICIPATION IN ANY MYSTERY EXPERIENCE (INCLUDING BUT NOT LIMITED TO YOUR INTERACTIONS WITH PROVIDERS OF THIRD-PARTY SERVICES) EXCEED THE AMOUNTS YOU HAVE PAID VIA THE MYSTERY PLATFORM OR IN CONNECTION WITH ANY MYSTERY EXPERIENCE IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE ALLEGED LIABILITY, OR ONE HUNDRED U.S. DOLLARS (U.S. $100.00), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE.
YOU ACKNOWLEDGE AND AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, YOUR USE OF THE SERVICES, OR YOUR PARTICIPATION IN ANY MYSTERY EXPERIENCE MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between Mysteries and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so some of the above limitations and exclusions may not apply to you.
No Liability for Non-Mysteries’ Actions
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MYSTERIES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT, ACTS OR OMISSIONS OF YOU OR ANY GUESTS ACCOMPANYING YOU ON MYSTERY EXPERIENCES, OR THE THIRD-PARTY SERVICE PROVIDERS THAT PROVIDE THE THIRD-PARTY SERVICES OR ANY OTHER THIRD PARTY, IN CONNECTION WITH THE USE OF THE SERVICES AND PARTICIPATION IN MYSTERY EXPERIENCES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT MYSTERIES HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY PRODUCTS OR SERVICES PROVIDED TO YOU BY THIRD-PARTY SERVICE PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so some of the above limitations and exclusions may not apply to you.
To the maximum extent permitted by applicable law, you agree to release, defend (at Mysteries’ option), indemnify, and hold Mysteries and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or any other applicable policies of Mysteries, (ii) your improper use of the Mystery Platform or any of the Services, (iii) your participation in a Mystery Experience, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of your participation, or (iv) your breach of any laws, regulations or third-party rights. Mysteries may assume exclusive control of any defense of any matter subject to indemnification by you (which shall not excuse your obligation to indemnify Mysteries), and you agree to fully cooperate with Mysteries in such event. You shall not settle any dispute subject to your indemnification under this Agreement without prior written consent from Mysteries.
Dispute Resolution: Agreement to Arbitrate
Please read the following sections carefully, as they affect your rights.
Agreement to Arbitrate
YOU AND MYSTERIES MUTUALLY AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE APPLICABILITY, BREACH, TERMINATION, VALIDITY, ENFORCEMENT OR INTERPRETATION THEREOF, TO THE ACCESS TO AND USE OF THE SERVICES, OR PARTICIPATION IN ANY MYSTERY EXPERIENCE, WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT (INCLUDING WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY (COLLECTIVELY, “DISPUTE”) WILL BE SETTLED BY BINDING INDIVIDUAL ARBITRATION (THE “ARBITRATION AGREEMENT”). ARBITRATION MEANS THAT THE DISPUTE WILL BE RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. THE ARBITRATOR WILL DECIDE ALL THRESHOLD QUESTIONS, INCLUDING BUT NOT LIMITED TO ISSUES RELATING TO THE ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THIS SECTION 10 AND WHETHER EITHER PARTY LACKS STANDING TO ASSERT HIS/HER/ITS CLAIM(S).
Exceptions to the Arbitration Agreement
Notwithstanding the Arbitration Agreement, you and Mysteries each agree that (i) any dispute that may be brought in small claims court may be instituted in a small claims court of competent jurisdiction, (ii) either you or Mysteries may seek injunctive relief in any court of competent jurisdiction to enjoin infringement or other misuse of either party’s intellectual property rights (including without limitation, violation of any data use restrictions contained in these Terms or other misuse of the Mysteries Content) or based on other exigent circumstances (e.g., imminent danger or comission of a crime, hacking, cyber-attack).
Pre-Arbitration Dispute Resolution and Notification
Prior to initiating an arbitration, you and Mysteries each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Mysteries’ customer service team by emailing us at firstname.lastname@example.org. If, after a good faith effort to negotiate, one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.
Any arbitration, if required, will be conducted by the American Arbitration Association (“AAA”) under its then current and applicable rules and procedures, which are located at www.adr.org , and those rules will govern the payment of all filing, administration, and arbitrator fees unless this Section 10 expressly provides otherwise. The party submitting a dispute for resolution through arbitration, will pay AAA’s filing fee. Each party will pay their pro rata share of administration and arbitrator fees under AAA’s rules; provided, however, if AAA’s Consumer Arbitration Rules are applicable, Mysteries will make arrangements to pay all necessary administration and arbitrator fees directly to AAA. If AAA’s Consumer Arbitration Rules are applicable and you lose the claim(s) you assert against Mysteries, you agree to reimburse Mysteries for your pro rata share of administration and arbitrator fees as part of any arbitrator award; provided, however, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Mysteries will pay as much of the administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous or that you asserted the claim(s) for harassment or any other improper purpose, you agree to reimburse Mysteries for all administration and arbitrator fees paid by Mysteries as part of any arbitration award. Each party shall pay its own attorneys’ fees and costs unless there is an applicable statutory provision requiring the prevailing party to be paid its attorneys’ fees and costs, in which case, a prevailing party attorneys’ fees award shall be determined by applicable law.
The arbitration shall be held in Seattle, Washington, in English before a single arbitrator selected in accordance with AAA rules. If the value of the relief sought is U.S. $25,000 or less, the arbitration will be conducted based solely on written submissions; provided, however, either party may request to have the arbitration conducted by telephone or in-person hearing, which request shall be subject to the arbitrator’s discretion. Attendance at any in-person hearing may be made by telephone or other remote means by you and/or us, unless the arbitrator requires otherwise after hearing from the parties on the issue. Keeping in mind that arbitration is intended to be a fast and economical process, either party may file a dispositive motion to narrow the issues or claims. Subject to the exclusions and waivers in these Terms, the arbitrator may award any individual relief or individual remedies that are permitted by applicable law. The arbitrator’s award shall be made in writing but need not provide a statement of reasons unless requested by a party. The arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction.
The Federal Arbitration Act, applicable federal law, and the laws of the State of Washington, without regard to principles of conflict of laws, will govern any Dispute.
No Class Actions or Representative Proceedings
YOU AND MYSTERIES ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW, 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 MYSTERIES 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.
If the class action waiver contained in this Section 10.5 is determined to be illegal or unenforceable, this entire Section 10 will be unenforceable, and the Dispute will be decided by the courts in the state of Washington, King County, or the United States District Court for the Western District of Washington, and the parties irrevocably submit to the exclusive jurisdiction of such courts.
Jury Trial Waiver
YOU AND MYSTERIES ACKNOWLEDGE AND AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AS TO ALL ARBITRABLE DISPUTES AND AS TO ANY DISPUTE THAT PROCEEDS IN COURT RATHER THAN ARBITRATION AS PROVIDED HEREIN.
Except as provided in Section 10.5, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect. If the arbitrator determines this Section 10 is unenforceable, invalid or has been revoked as to any claim(s), then the Dispute as to such claim(s) will be decided by the courts in the state of Washington, King County, or the United States District Court for the Western District of Washington, and the parties irrevocably submit to the exclusive jurisdiction of such courts.
Term and Termination
This Agreement will remain in full force and effect while you use the Services or otherwise maintain an active Account. Mysteries may terminate this Agreement at any time without notice if we believe that you have breached this Agreement, including but not limited to, by using the Services for non-personal use, engaging in prohibited activities, and any breach of your representations and warranties. All provisions of this Agreement which by their nature should survive termination shall survive termination, including without limitation, ownership provisions, payment obligations, warranty disclaimers, assumption of risk agreement, release of claims, indemnity, and limitations of liability.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Mystery Platform (collectively, “Feedback”). You may submit Feedback by emailing us at email@example.com or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
Notice of Claimed Infringement: DMCA Claims
Mysteries respects the intellectual property rights of others. In accordance with the Digital Millennium Copyright Act and other applicable intellectual property laws, Mysteries will respond expeditiously to claims of copyright infringement committed using the Services that are reported to our Designated Copyright Agent, identified below.
If you believe that any of the materials available on or through the Services infringes on any copyright you own or control, please send us a notice of infringement (a “DMCA Notice”). A DMCA Notice must be in writing and must set forth the following items:
The DMCA Notice should be sent to:
Attn: Shane Kovalsky
50 University St. #615
Seattle, WA 98101
Upon receipt of the DMCA Notice, Mysteries will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Services.
Unless otherwise specified, any notices or other communications to you permitted or required under these Terms, will be provided electronically and given by Mysteries via email, Mystery Platform notification, or messaging service.
Controlling Law and Venue
These Terms will be interpreted in accordance with the laws of the State of Washington and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims proceedings) that are excluded from the Arbitration Agreement in Section 10 must be brought in the state or federal courts located in King County, Washington, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in King County, Washington.
No Waiver and Severability
Mysteries’ failure to enforce a provision of this Agreement is not a waiver of its right to do so later or to enforce any other provision. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise permitted under law.
Except as explicitly provided herein, if any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Mysteries’ prior written consent. Mysteries may, without restriction, assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion.
Changes to the Services
Mysteries reserves the right, at any time and in our sole discretion, to amend, modify, suspend, or terminate, temporarily or permanently, the Services, the Mysteries Content, and any part thereof, without notice to you. Mysteries shall have no liability to you or any other person or entity for any modification, suspension, or termination of the Services, the Mysteries Content, or any part thereof.
No Third-Party Beneficiaries
This Agreement does not, and is not intended to, confer any rights or remedies upon any person other than the parties hereto.
No Agency Relationship
No joint venture, partnership, employment or agency relationship exists between you and Mysteries as a result of this Agreement or your use of the Services and you may not make any representations on behalf of or bind Mysteries in any manner.
The headings of the sections contained in these Terms are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of the Terms.
Changes to Terms; Additional Terms
Mysteries reserves the right to modify these Terms of Service (effective on a prospective basis) at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Mystery Platform and update the “Last Updated” date at the top of these Terms. If we make material changes to these Terms, we will notify you here, or by other means, such as email, in our discretion. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Mystery Platform will constitute acceptance of the revised Terms.
Special terms or rules may apply to some Services. Any such terms are in addition to these Terms. In the event of any conflict or inconsistency between these Terms, our Privacy Notice, and any rules, restrictions, limitations, terms and/or conditions that may be communicated to users of the Services, Mysteries shall determine which rules, restrictions, limitations, terms and/or conditions shall control and prevail, in our sole discretion, and you specifically waive any right to challenge or dispute such determination.
Except as it may be supplemented by additional terms and conditions, policies, guidelines or standards as provided herein, this Agreement constitutes the entire agreement between Mysteries and you pertaining to the subject matter hereof, and supersedes any and all prior oral or written understandings or agreements between Mysteries and you in relation to the access to and use of the Services, including but not limited to the participation in any Mystery Experience.
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