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Steinway Services Terms of Use |
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Last Updated: April 5th, 2018 IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AGREEMENT AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 12. These Terms of Use (the “Terms” or “Agreement”) set forth the terms and conditions under which individuals residing in the United States may use Service.Steinway.com described herein and operated by Steinway (“Steinway Services”) and/or the Site (as defined below). Certain users are subject to additional policies, rules and terms and conditions, which you may be required to agree to as a condition of using Steinway Services (“Additional Terms”). In those cases, the applicable Additional Terms are set forth in the online materials made available to such users. Throughout these Terms, the words “we,” “us” and “our” refer to Steinway Musical Instruments, Inc. and all of its business divisions and subsidiaries collectively (“Steinway”) and the party you are contracting with is Steinway.
For purposes of these Terms, and except to the extent expressly excluded below, the “Site” shall mean https://service.steinway.com and any other websites, web pages, mobile applications and mobile websites operated by Steinway Services in the United States, and the “Services” shall mean any of the various services that Steinway Services provides through the Site or any other channels, including without limitation, over the telephone. 1. Description of Services; Limitations of our Services 1.1 About Our Services Steinway Services is a communications platform enabling the connection between individuals seeking to obtain Services (“Customers”) and approved piano technicians seeking to provide services (“Technicians”). Customers can use Steinway Services to find, coordinate and schedule appointments with Technicians. Customers and Technicians together are referred to as “users.” Those certain Services requested by the Customers, which are to be completed by the Technicians, are referred to as “Piano Services” and they may include grand and vertical acoustic piano tuning, regulation, voicing and interior cleaning. The provision of all Piano Services is up to the Technicians, which may be scheduled through use of the Site. 1.2. Limitations of our Services We do not employ any Technicians. Further, we do not have control over the quality, timing, or legality of the Piano Services actually delivered by Technicians, or of the integrity, responsibility or actions of Technicians and we neither refer or recommend Technicians nor make any representations about the suitability, reliability, timeliness, or accuracy of the Piano Services provided by Technicians or the integrity, responsibility or actions of Technicians whether in public, private or offline interactions. Technician content in a listing is primarily user generated, and we do not control or vet user generated content for accuracy. Steinway Services does not assume any responsibility for the accuracy or reliability of any information provided by Technicians on or off this Site. Any screening of a Technician and his or her information by Steinway Services is limited and should not be taken as complete, accurate, up-to-date or conclusive of the individual’s or entity’s suitability as a Technician. Steinway Services is not responsible for the conduct, whether online or offline, of any Technician or other user of the Site or Services. Moreover, Steinway Services does not assume and expressly disclaims any liability that may result from the use of information provided on our Site. All users, including Technicians, hereby expressly agree not to hold Steinway Services (or Steinway Services’ officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors or recruiters, hereinafter “Affiliates”) liable for the actions or inactions of any Technician or other third party or for any information, instruction, advice or services which originated through the Site, and, Steinway Services and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom. 2. Eligibility to Use the Site and Services By requesting to use, registering to use and/or using the Site or the Services, you represent and warrant that you have the right, authority and capacity to enter into these Terms and you commit to abide by all of the terms and conditions hereof. You also represent and warrant that you meet the following eligibility criteria:
3. Rules for User Conduct and Use of Services 3.1. Registration, Posting, and Content Restrictions The following rules pertain to “Content”, defined as any communications, images, sounds, videos, and all the material, data, and information that you upload or transmit through the Site or Services, or that other users upload or transmit, including without limitation any content, messages, photos, audios, videos, reviews or profiles that you publish or display (hereinafter, “post”). By posting any Content while using our Service, you agree, represent and warrant as follows:
Opinions, advice, statements, offers, or other information or content made available on the Site or through the Site, but not directly by Steinway Services, are those of their respective authors. Such authors are solely responsible for such content. Steinway Services does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Site or available through the Service, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Service. Under no circumstances will Steinway Services or its Affiliates be responsible for any loss or damage resulting from: (a) your reliance on information or other content posted on the Site or transmitted to or by any user of the Site or Service; or (b) reviews or comments made about you on the Site by other users. Steinway Services disclaims any liability whatsoever for any misstatements and/or misrepresentations made by any users of the Site. Users hereby represent, understand and agree to hold Steinway Services harmless for any misstatements and/or misrepresentations made by or on behalf of them on this Site or in any other venue. 3.2. Exclusive Use You are responsible for all activity on and use of your account, and you may not assign or otherwise transfer your account to any other person or entity. 3.3. Prohibited Uses By using the Site or Services of Steinway Services, you agree that you will not under any circumstances:
Should Steinway Services find that you violated the terms of this Section or any terms stated herein, Steinway Services reserves the right, at its sole discretion, to immediately terminate your use of the Site and Services. Further, in order to protect the integrity of the Site and the Services, Steinway Services reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Site. 4. Background and Verification Checks 4.1 Steinway Services May Regularly Verify Your Identity and the Accuracy of Your Representations and Warranties By registering as a Technician, you authorize Steinway Services, and acknowledge that for purposes of promoting the safety and integrity of its Site and Service, Steinway Services reserves the right, but not the obligation, to utilize third party service providers to verify on an ongoing basis that your registration data is accurate and that the representations and warranties in Section 2 above addressing legal matters such as complaints, arrests, sex offender status, etc. are also true (“Verification Checks”). These third parties may use data from a variety of sources, under a variety of circumstances, for these site safety purposes including, without limitation, information from national criminal databases, sex offender registries, certain media streams, terrorist watch lists, criminal and fugitive watch lists, fraud watch lists, law enforcement reports, and other data. You agree that Steinway Services may take such action in response to Verification Checks as it deems appropriate in its sole discretion, including without limitation suspending and/or terminating your membership, should it determine that you have violated any representation or warranty or any other provision of these Terms or are otherwise unsuitable for Steinway Services. You also hereby represent, understand and expressly agree that Steinway Services does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in a Verification Check. We do not typically communicate the results of a Verification Check to any third party, though we reserve the right to do so for law enforcement or other safety-related purposes in accordance with applicable laws. BY AGREEING TO THESE TERMS, YOU AGREE TO ALLOW STEINWAY SERVICES TO PERFORM THE VERIFICATION CHECKS DESCRIBED ABOVE. IF YOU DO NOT WANT THESE VERIFICATION CHECKS TO BE PERFORMED, YOU SHOULD NOT USE STEINWAY SERVICES. 4.2 Important Limitations About Background Checks; Release of Liability for Results of Background Checks, Internal Background Checks, and Verification Checks SPECIAL NOTICE FOR MASSACHUSETTS AND NEW HAMPSHIRE: Criminal County Searches conducted in Massachusetts and New Hampshire as part of the Criminal Records Check and the Criminal+MVR Records Check (for individuals who are believed to have lived in one or both of these states during the seven years preceding the background check request) search only the Superior Court and a single District Court in the county seat or its equivalent for each county listed below. Criminal records (including misdemeanors and felonies) from other courts in these states will not be searched. This is an illustrative, non-comprehensive, list of certain state and county limitations of the background checks offered through Steinway Services; additional limitations may apply in certain jurisdictions, including on the federal level. For example, for many states only certain registered sex offender information is reported, and for many states, only a subset of felony convictions are reported (and not any misdemeanors, charges or arrest records). In addition to legal and reporting system limitations of background checks, each check is performed with the authorization of the person being checked, using information he or she provides, such as home address, social security number, date of birth, and name. If a candidate provides incorrect information, the check might be run with inaccurate identifying data, which can impact the validity of the criminal check. Finally, criminal records are not always reported accurately or promptly, and human and electronic error can result in inaccurate or incomplete reporting. Consequently, even the most comprehensive background check offered may not disclose the existence of all criminal records in all jurisdictions. If you decide to access, use, or share information provided by a background check, you agree to do so in accordance with applicable law. You also agree to release, indemnify and hold harmless Steinway Services from any loss, liability, injury, death, damage, or costs that may result from your use of, reliance on, or sharing of the information contained in a background check regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any such information. You expressly acknowledge that Steinway Services has no obligation to perform background checks or Verification Checks on any Registered Users. To the extent Steinway Services performs such checks on certain Registered Users, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those users have provided or of their eligibility to use the Services. 5. Termination Steinway Services reserves the right, in its sole discretion, to immediately terminate your access to all or part of the Site and/or Services, to remove your profile and/or any content posted by or about you from the Site, and/or to terminate your account with Steinway Services, with or without notice for any reason or no reason in its sole discretion, including without limitation if Steinway Services should determine that you are not eligible to use the Services, have violated any terms stated herein or in any of the Additional Terms, are not suitable for participation as a Registered User, have mis-used or mis-appropriated Site content, including but not limited to use on a “mirrored,” competitive, or third-party site. Upon termination, Steinway Services shall be under no obligation to provide you with a copy of any content posted by or about you on the Site. If we terminate your registration, we have no obligation to notify you of the reason, if any, for your termination. Following any termination of any individual’s use of the Site or the Services, Steinway Services reserves the right to send a notice thereof to other Registered Users with whom we believe the individual has corresponded. Our decision to terminate an individual’s registration and/or to notify other Registered Users with whom we believe the individual has corresponded does not constitute, and should not be interpreted or used as information bearing on, the individual’s character, general reputation, personal characteristics, or mode of living. 6. Privacy Steinway Services uses the information you provide on the Site or via the Services in accordance with our Privacy Policy. For more information, see our full Privacy Policy, the terms of which are incorporated herein. 7. Payment And Refund Policy 7.1 Billing and Payment If you purchase a Steinway Services product or service package, you agree to pay Steinway Services all charges associated with the plan you purchased as described on the Site at the time you purchased and provide your payment information. In addition, you are responsible for any state or local sales taxes associated with the Services or products purchased. You also authorize Steinway Services, or a third-party payment processor that works on our behalf, to charge your chosen payment method according to the terms of the plan that you have purchased. Steinway Services reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. To the extent you elect to purchase other Services or product offerings we may offer for a fee, you authorize Steinway Services to charge your chosen payment provider for the Services and/or products you purchase. You agree that if Steinway Services already has your credit card on file as a result of prior purchases you have made, we may charge that credit card for the additional Services/products you purchase. 7.2 Renewal and Cancellation BEFORE YOUR SERVICE PLAN EXPIRES, STEINWAY SERVICES WILL CONTACT YOU ABOUT AUTOMATICALLY RENEWING YOUR PLAN. 7.3 Refund Policy Except as set forth in these Terms or as described on the Site at the time you make a purchase, all payments for services/products are non-refundable and there are no refunds or credits for unused or partially used services/products or service/product cancellations. Steinway Services does not provide refunds or credits under any other circumstances, unless it determines in its sole discretion that a refund or credit is warranted due to extenuating circumstances, such as a duplicate account. 8. Booking Once a Service Plan is purchased, you may use the Site to find and schedule Technicians to service your piano. Upon requesting an appointment with a Technician, you will receive a written confirmation directly from the Technician within twenty-four (24) hours confirming the appointment and including details about the Technician. Once confirmed, the appointment will also appear on your calendar on the Site. You may not cancel on a Technician more than one time, and you may not cancel within 24 hours of an appointment. Upon the completion of an appointment, you will update the status on the Site and include any relevant notes regarding the Technician or the services received. 9. Release of Liability for Conduct and Disputes Steinway Services is not an employer of Technicians. Customers may seek the Piano Services of a Technician through the use of the Site or Steinway Services, and Technicians may post profiles and submit proposals to Customers regarding their Piano Services. Any issues concerning the conduct of a Customer or Technician including, without limitation, the services received by the Customer, must be resolved directly by the Customer and the Technician. Steinway Services will not be held responsible and expressly disclaims any liability whatsoever for any claims, demands or damages direct or indirect of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such issues. By using this Site or our Services, you hereby represent, understand, and expressly agree to hold Steinway Services harmless for any claim or controversy that may arise out of the actions of or relationship between you and any Customer, Technician or other user(s) of the Site. You agree to take reasonable precautions in all interactions with Customers, Technicians or other users of the Site or the Services. By using the Site or the Services, you agree to report any alleged improprieties of any users therein to Steinway Services immediately by notifying Steinway Services of the same via electronic correspondence. 10. Disclaimers; Limitations; Waivers; Indemnification 10.1. No Warranty The information and materials contained on the Site, including text, graphics, information, links or other items are provided “as is,” “as available.” Further, opinions, advice, statements, offers, or other information or content made available through the Services, but not directly by Steinway Services, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. STEINWAY SERVICES DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THIS INFORMATION AND MATERIALS; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN STEINWAY SERVICES; (3) WARRANT THAT YOUR USE OF THE SITE OR SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (4) GIVE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, STEINWAY SERVICES EXPRESSLY EXCLUDES ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR THE LAW OF EQUITY AND DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THIS INFORMATION AND MATERIALS. IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, STEINWAY SERVICES MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED REGARDING THE SUITABILITY OF ANY USER OF OUR SITE TO PROVIDE SERVICES AS A TECHNICIAN OR TO RECEIVE THE SERVICES OF A TECHNICIAN. 10.2. Assumption of Risk You assume all risk when using the Site and the Services, including but not limited to all of the risks associated with any online or offline interactions with users of the Site or the Services. 10.3. Limitation of Liability Incidental Damages and Aggregate Liability. In no event will Steinway Services be liable for any indirect, special, incidental, or consequential damages, losses or expenses arising out of or relating to the use or inability to use the Site or Services, including without limitation damages related to any information received from the Site or Services, removal of content from the Site, including profile information, any email distributed to any user or any linked web site or use thereof or inability to use by any party, or in connection with any termination of your subscription or ability to access the Site or Services, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Steinway Services, or representatives thereof, are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL STEINWAY SERVICES’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES OR THE SITE, EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT, OR, IF YOU HAVE NOT PAID STEINWAY SERVICES FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00. No Liability for Non-Steinway Services Actions. IN NO EVENT WILL STEINWAY SERVICES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE OR THE SERVICES OR ANY AGREEMENT OR RELATIONSHIP FORMED USING THE SITE OR SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE, OR TRANSMITTED TO OR BY ANY USERS OR ANY OTHER INTERACTIONS WITH OTHER REGISTERED USERS OF THE SITE OR SERVICES, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU. 10.4. Indemnification By agreeing to these Terms, users of the Site and Services agree to indemnify, defend and hold harmless Steinway Services and its Affiliates from and against any and all claims, losses, expenses or demands of liability, including reasonable attorneys’ fees and costs incurred by Steinway Services and its Affiliates in connection with any claim by a third party (including an intellectual property claim) arising out of (i) materials and content you submit, post or transmit through the Site, (ii) use of the Site or Services by you in violation of these Terms of Use or in violation of any applicable law, or (iii) any relationship or agreement formed with a Customer or Technician using the Site or Services. Users further agree that they will cooperate as reasonably required in the defense of such claims. Steinway Services and its Affiliates reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by users, and users shall not, in any event, settle any claim or matter without the written consent of Steinway Services. Users further agree to hold harmless Steinway Services and its Affiliates from any claim arising from a third party’s use of information or materials of any kind that users post to the Site. 11. Copyright Notices/Complaints It is Steinway Services’ policy to respond to notices of alleged copyright infringement with the Digital Millennium Copyright Act (“DMCA”). If you believe any materials accessible on or from our Site infringe your copyright, you may request removal of those materials (or access thereto) from the Site by contacting Steinway Services’ copyright agent (identified below) and providing the following information: 1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work. 2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material. 3. Your name, address, telephone number and (if available) e-mail address. 4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law. 5. A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf. 6. A signature or the electronic equivalent from the copyright holder or authorized representative. Steinway Services’ agent for copyright issues relating to this Site is as follows: Copyright Agent In an effort to protect the rights of copyright owners, Steinway Services maintains a policy for the termination, in appropriate circumstances, of Registered Users and other users of this Site who are repeat infringers.
12.1 Agreement to Arbitrate This Section 12 is referred to in these Terms as the “Arbitration Agreement”. Unless you opt-out in accordance with the opt-out procedures set forth in Section 12.7 below, you agree that all claims relating to or arising out of these Terms or the breach thereof, whether sounding in contract, tort, or otherwise that have arisen or may arise between you and Steinway Services or a Steinway Services Affiliate, whether relating to these Terms (including any alleged breach thereof), the Services, the Site, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. 12.2 Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AND STEINWAY SERVICES AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND STEINWAY SERVICES EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST STEINWAY SERVICES AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER STEINWAY SERVICES USERS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. 12.3 Pre-Arbitration Dispute Resolution Steinway Services is always interested in resolving disputes amicably and efficiently. So before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at info@service.steinway.com or at Steinway Musical Instruments, Inc., Attn: Steinway Services Product Management, 1 Steinway Place, Astoria, New York 11105. 12.4 Arbitration Procedures If we cannot resolve a Claim informally, any Claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. Arbitration will be conducted by a neutral arbitrator in accordance with the rules of JAMS that are in effect at the time the arbitration is initiated (collectively referred to as the “JAMS Rules”), as modified by this Arbitration Agreement, and excluding the JAMS Class Action Procedures. For information on JAMS, please visit its website, https://www.jamsadr.com/. Information about JAMS’s Rules and fees for consumer disputes can be found at the JAMS consumer arbitration page, https://www.jamsadr.com/rules-comprehensive-arbitration/. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 10. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. To commence an arbitration against Steinway Services, you must write a demand for arbitration that includes a description of the dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com. You should send three copies of the Demand, plus the appropriate filing fee, to JAMS at 620 Eight Ave., NY Times Building, 34th Floor, New York, NY 10018, and send one copy to Steinway Services at Steinway Musical Instruments, Inc., Attn: Legal Department, 1 Steinway Place, Astoria, New York 11105. For more information, see the JAMS arbitration rules and forms, https://www.jamsadr.com/rules-download/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or Steinway Services may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Steinway Services subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Steinway Services, unless the arbitrator requires otherwise. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise and all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Steinway Services users, but is bound by rulings in prior arbitrations involving the same Steinway Services user to the extent required by applicable law. 12.5 Costs of Arbitration Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Steinway Services will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Steinway Services will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Steinway Services for all fees associated with the arbitration paid by Steinway Services on your behalf that you otherwise would be obligated to pay under the JAMS rules. 12.6 Confidentiality All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties. 12.7 Opt-Out Procedure You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. For Steinway Services users, the Opt-Out Notice must be postmarked no later than 30 days after the date you use our Site or Services for the first time. You must mail the Opt-Out Notice to Steinway Musical Instruments, Inc. Attn: Legal Department, 1 Steinway Place, Astoria, New York 11105. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to the Steinway Services account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, Steinway Services will likewise not be bound by these arbitration provisions. All other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. 12.8 Future Changes to this Arbitration Agreement Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, such change shall not be effective until at least 60 days from the date of posting, and shall not apply to any claim that was filed in a legal proceeding against Steinway Services prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and shall not be effective as to any claim that was filed in a legal proceeding against Steinway Services prior to the effective date of removal. 13. Intellectual Property Rights. Steinway Services, the Site and the information, data, content and materials which it contains (“Steinway Materials”), are the property of Steinway and/or its affiliates and licensors, excluding user-generated content, which Steinway has a right to use. The Steinway Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Steinway and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the Steinway Materials. Any use of Steinway Materials, other than as expressly permitted herein, is prohibited without the prior permission of Steinway and/or the relevant right holder. The service marks and trademarks of Steinway are owned by Steinway. Any other trademarks, service marks, logos and/or trade names appearing on the Site are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the Site without the express prior written consent of the owner. 14. Governing Law and Jurisdiction These Terms, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise, shall be governed by the laws of the State of New York, including New York’s statutes of limitations governing your claim, without giving effect to its principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of Section 12, the Arbitration Agreement. Unless you and we agree otherwise, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), either as a result of your decision to opt-out of the Arbitration Agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Steinway Services must be resolved exclusively by a state or federal court located in the City of New York, State of New York. You and Steinway Services agree to submit to the personal jurisdiction of the courts located within the City of New York, State of New York for the purpose of litigating all such claims or disputes. 15. Miscellaneous Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. The invalidity, illegality or unenforceability of any term or provision of these Terms shall in no way effect the validity, legality or enforceability of any other term or provision of these Terms. Each Affiliate (as defined in Section 1.2) is expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. 16. Severability If a court decides that any term or provision of these Terms other than Section 12.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms shall be enforceable as so modified. If a court decides that any of the provisions of Section 12.2 are invalid or unenforceable, then the entirety of Section 12 shall be null and void. The remainder of the Terms will continue to apply. 17. Contact Information If you have any questions or need further information as to the Site or Services provided by Steinway Services, or need to notify Steinway Services as to any matters relating to the Site or Services please contact Steinway Services at: Steinway Services Product Management |
