NOTE: THIS AGREEMENT PROVIDES FOR THE RESOLUTION OF DISPUTES BY ARBITRATION INSTEAD OF COURT.
IMPORTANT: THE WALL IS INTENDED FOR USE BY CHILDREN WITH THE CONSENT AND SUPERVISION OF THEIR PARENT OR LEGAL GUARDIAN. BY ACCEPTING THIS AGREEMENT, YOU REPRESENT YOU ARE THE PARENT OR LEGAL GUARDIAN OR ARE OTHERWISE AUTHORIZED TO ENTER THIS AGREEMENT ON YOUR BEHALF AND ON BEHALF OF THE MINOR CHILD USING THE WALL. HOWEVER, WE DO NOT COLLECT AND YOU SHOULD NOT PROVIDE US ANY PERSONALLY IDENTIFIABLE INFORMATION (“PII”) FOR ANY CHILD THAT IS USING THE WALL. YOU REPRESENT THAT ANY EMAIL THAT IS PROVIDED IN CONNECTION WITH THE WALL IS AN EMAIL FOR A PERSON OVER THE AGE OF 13.
1. USE OF WALL
You have a limited, non-transferable and non-exclusive permission to use the Wall while in the LaGuardia Terminal B solely for the purpose of creating images using the templates and palettes provided by the Wall (“Authorized Purpose”).
2. USER CONTENT
3. PROHIBITED CONTENT
The Wall is intended for providing a safe and enjoyable platform for children to be creative while in the LaGuardia Terminal B. We expect users to act responsibility and create age-appropriate User Content. You should only use the Wall for the Authorized Purpose. You are prohibited from creating User Content or using the Wall in a manner that:
Violates any applicable law or regulation, including any regulations of the Port Authority of New York and New Jersey; Transportation Safety Agency; or the Federal Aviation Administration;
Threatens violence or promotes or enables terrorism, illegal or unlawful activities;
Infringes the copyright, patent, trademark, trade secret or other intellectual property rights of others;
Violates the privacy or publicity or other personal rights of others;
Misrepresents affiliation, connection or association with, any person or entity;
Is intended to deceive or defraud others;
Is libelous, obscene, profane, inaccurate, sexually suggestive, offensive, threatening, defamatory, abusive or hateful;
Promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
Is intended to or tends to annoy, threaten, harass, or intimidate other persons;
Contains video or images of another person without his or her permission;
Contains, collects or solicits personal information about a minor; or
Distributes another person’s personal information without his or her permission, or collects or solicits another person’s personal information for commercial or unlawful purposes (collectively 1) through 12) are “Prohibited Conduct”).
PLEASE NOTE THAT IF YOU ENGAGE IN PROHIBITED CONDUCT YOUR USE OF THE WALL WILL BE TERMINATED AND YOU MAY BE SUBJECT TO FORFITURE OF A RIGHT OF PASSAGE WITH AN AIRLINE, DETENTION BY THE TSA AND OTHER LAW ENFORCEMENT AND REMOVAL FROM THE LAGUARDIA AIRPORT PREMISES.
You agree not to (i) modify, adapt or translate the Wall or attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Wall; (ii) make copies of any Wall documentation; (iii) remove any copyright notice, trade mark, legend, logo or product identification from the Wall; (iv) modify, translate or prepare derivative works of the Wall, or any portion thereof; (v) make any commercial use of the Wall; (vi) use the Wall in order to build or provide any commercially available product or Wall that competes, directly or indirectly, with the Wall; (vii) use the Wall in order to build or provide any commercially available product or Wall that competes, directly or indirectly, with the Wall; (viii) copy any features, functions, interfaces or graphics of the Wall; or (ix) rent, lease, distribute or lend the Wall to third parties.
5. CHANGES TO WALL
You understand and agree that LGP may change or discontinue the Wall, or change or remove functionality of the Wall at any time, in our sole discretion.
6. THIRD-PARTY LINKS
The Wall is owned and operated by LGP and other rights relating thereto, are and will remain the property of LGP and its licensors and suppliers. The Wall is protected by U.S. and international copyright, trademark, and other laws; and you acknowledge that these rights are valid and enforceable. Nothing contained in this Agreement or the Wall should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark(s) without the express written permission of LGP, LGP licensors or suppliers, or the third party owner of any such trademark, except as set forth in the following paragraph.
LGP may immediately terminate this Agreement, and/or your access to and use of the Wall, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. LGP may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Wall shall immediately cease. Sections 2 through 15 shall survive expiration or termination of this Agreement. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Wall, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate LGP to maintain and support the Wall, or any part or portion thereof, during the term of this Agreement.
THE WALL IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE WALL IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE WALL, OR YOUR USE OF THE WALL, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED; OR THAT THE WALL, OR ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THE WALL, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11. OF LIABILITY
YOU ASSUME ALL RISK ASSOCIATED WITH USE OF THE WALL. YOU FURTHER HEREBY RELEASE AND FOREVER DISCHARGE AND HOLD HARMLESS LGP, THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, AND OUR OR THEIR LICENSORS, AIRLINES, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES (COLLECTIVELY THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY, CLAIMS, DAMAGES, AND DEMANDS OF WHATEVER KIND OR NATURE, EITHER IN LAW OR IN EQUITY, WHICH ARISE OR MAY HEREAFTER ARISE FROM YOUR USE OF THE WALL. YOU UNDERSTAND THAT THIS RELEASE DISCHARGES THE RELEASED PARTIES FROM ANY LIABILITY OR CLAIM THAT YOU MAY HAVE AGAINST THE RELEASED PARTIES WITH RESPECT TO ANY BODILY INJURY, PERSONAL INJURY, ILLNESS, DEATH OR PROPERTY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE WALL, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES OR OTHERWISE.
You agree to fully indemnify, defend, and hold LGP, the Port Authority of New York and New Jersey, and each of their parent, affiliated and subsidiary entities, suppliers, agents, successors, and assigns and our and their directors, officers, employees, consultants, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your breach of this Agreement; (b) your User Content and activities in connection with the Wall; (c) your negligence or willful misconduct; and/or (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
13. CHOICE OF LAW
This Agreement will be governed by and construed and enforced in accordance with the laws of the State of New York, without reference to conflict of laws principles. Each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in the New York City, New York with regard to any dispute arising out of or relating to this Agreement. The Parties hereby disclaim and exclude the Wall from the United Nations Convention on Contracts for the International Sale of Goods.
You and LGP agree that any dispute, claim, or controversy between you and LGP arising in connection with or relating in any way to this Agreement or the Wall will be determined by mandatory binding individual (not class) arbitration. You and LGP further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of this arbitration provision (“Arbitration Provision”) or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreement.
You and LGP both agree that nothing in this Arbitration Provision will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court of competent jurisdiction or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Provision doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
YOU AND LGP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and LGP agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award 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 claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
Either you or we may start arbitration proceedings. Any arbitration between you and LGP will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and LGP agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879.
Any arbitration hearings will be private and take place in Queens County, New York, provided that if the claim is for $25,000 or less, you or LGP may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in Queens County, New York. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
If you choose to file an arbitration proceeding and you are required to pay a filing fee, LGP will reimburse you for that filing fee should you be successful in your claim, unless your claim is for greater than US $10,000, in which case you will be responsible for the filing fee. LGP will pay any other arbitration fees, including your share of arbitrator compensation, unless otherwise required by AAA rules or court order. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
If this Arbitration Provision is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 13 shall govern any claim in court arising out of or related to the Agreement.
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement may not be changed, waived or modified except by LGP as provided herein or otherwise by written instrument signed by LGP. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with LGP’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. LGP may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.