Terms of Service

WEBSITE AND MOBILE APPLICATION TERMS OF USE

These Terms of Use are an agreement between you and Small Market, LLC d/b/a as The Boombox Studio (“Small Market,” “we” or “us”) governing your use of (including any access to) (1) the Small Market website, currently located at www.theboomboxstudio.com (“Site”), (2) the Small Market mobile application currently named The Boombox App (“App”), and (3) the information, services, products, materials and programs offered through the Site and/or the App (“Additional Services”) (collectively, together with the Site and the App, the “Online Services”).

By accessing or using the Online Services, you agree to these Terms of Use. These Terms of Use hereby incorporate by this reference our Privacy Policy and the terms and conditions and privacy policies of any Additional Services made available by the Online Services, including but not limited to the services provided by Vint Incorporated and the Rocket Science Group LLC d/b/a MailChimp. If you do not agree to be bound by these Terms of Use, you may not access or use our Online Services.

For clarity, in the event of any dispute arising out of or related to the Additional Services made available by the Site and/or App, the terms and conditions of the Additional Services will govern with respect to such dispute.

THESE TERMS OF USE CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, CLASS ACTIONS OR OTHER COURT PROCEEDINGS. YOU AND SMALL MARKET AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS ARBITRATION.

PRIOR TO PARTICIPATING IN ANY EXERCISE PROGRAM OR ACTIVITY, YOU AGREE THAT YOU WILL NOT USE ANY HEALTH INFORMATION PROVIDED BY OUR ONLINE SERVICES TO DIAGNOSE, TREAT, CURE OR PREVENT ANY MEDICAL CONDITION. APPLICATION OR RELIANCE ON OF ANY HEALTH INFORMATION, INCLUDING ANY TECHNIQUES, IDEAS AND SUGGESTIONS ACCESSED THROUGH OUR ONLINE SERVICES, IS AT YOUR SOLE DISCRETION AND RISK.

ELIGIBILITY TO USE SERVICES

By using any Online Service, you agree and warrant that you (1) are 18 years old or older and are of legal age to enter into this agreement, or (2) are between the ages of 13-18 and have obtained parental or guardian consent to enter into this agreement via our online form found here; or (3) an emancipated minor in the State of California.

RIGHTS AND RESTRICTIONS

We hereby grant you permission to access and use the Online Services as set forth in these Terms of Use, provided that you agree not to distribute in any medium any part of the Online Services without Small Market’s prior written authorization, and you agree not to alter or modify any part of the Online Services or any of its related technologies.

We reserve the right to discontinue any aspect of the Online Services at any time.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, materials or any other content or information provided by you to us are non-confidential and shall become the sole property of Small Market. Small Market shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of such information for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

TERMINATION

These Terms of Use are effective until terminated. We may terminate these Terms of Use at any time and without prior notice, for any or no reason. Upon any such termination, your right to use the Online Services will immediately cease, and we may, without liability to you or any third party, immediately deactivate or delete your account, and all associated materials, without any obligation to you.

REPRESENATIONS MADE BY YOU

By accessing or using the Online Services, you represent, warrant and covenant that you are a resident of the United States and that all content, information, data, materials or other resources of any kind submitted to us through or in connection with the Online Services are complete and accurate, do not violate any applicable law and do not plagiarize, violate or infringe upon the rights of any third party, including trade secret, copyright, trademark, trade dress, privacy, patent or other personal or proprietary rights.

MOBILE SERVICES AND DATA CHARGES

The Online Services may include certain services available via your mobile phone, including but not limited to (1) the ability to book and/or purchase classes via your mobile phone, (2) the ability to browse our App from your mobile phone, and (3) the ability to access certain features through the App (collectively the "Mobile Services"). We do not charge for these Mobile Services. However, your carrier's normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost.

In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we and our service providers may communicate with you regarding our services by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.

THIRD PARTY CONTENT AND SERVICES

The Online Service may contain links to third party websites that are not owned or controlled by us. Small Market has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites, including privacy and data gathering practices. In addition, we will not and cannot censor or edit the content of any third-party site. By using the Online Services, you expressly relieve and release Small Market from any and all liability arising from your use of any third-party website.

Upon leaving our Site or App, these Terms of Use shall no longer govern. We encourage you to read the terms and privacy policy of each other website that you visit.

PUSH NOTIFICATIONS AND IN-APP ALERTS AND UPDATES

When you download our mobile app, we may provide you with the option to opt-in to receive push notifications from us on your mobile device in connection with that mobile notification. These push notifications may include promotional communications regarding our products and services. You may, after downloading the applicable mobile application, opt out of receiving push notifications by adjusting the settings on your mobile device. Opting out of push notifications will not affect other communications you receive from us, such as email communications.

INTELLECTUAL PROPERTY

You acknowledge that all content and materials available on or through the Online Services are protected by copyrights, trademarks, service marks, trade secrets, know-how or other proprietary rights and laws and are owned by Small Market. You may only use the Online Services or their contents as expressly permitted in these Terms of Use and for no other purpose.

Small Market retains exclusive ownership of all data, material and other information regarding your use of the Online Services. Except as expressly provided in these Terms of Use or as we may otherwise expressly authorize in advance in writing, you shall have no right to, and you agree not to (directly or indirectly), own, use, sell, license, sublicense, assign, rent, lease, loan, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, translate, improve, edit or create any new or derivative works from the Online Services, or any content or materials available through the Online Services, in whole or in part.

The trade names, trademarks, service marks and logos displayed through the Online Services are the property of Small Market and/or other third parties. Except when referring to Small Market and/or its products and services, you may not use our trade names, trademarks, service marks or logos or any trade name, trademark, service mark or logo confusingly similar thereto. Nothing contained in the Online Services should be construed as granting any license or right to use any trade names, trademarks, service marks or logos without the express prior written consent of the applicable owner.

DISCLAIMERS

YOU EXPRESSLY AGREE THAT, OTHER THAN TO THE EXTENT THAT ANY WARRANTY IS INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW, (A) THE ONLINE SERVICES AND ALL MATERIALS, RESOURCES, INFORMATION, SOFTWARE, THIRD PARTY RESOURCES, PRODUCTS AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE ONLINE SERVICES (COLLECTIVELY, TOGETHER WITH THE ONLINE SERVICES, THE “OFFERING”) ARE PROVIDED “AS IS” FOR YOUR USE. THE OFFERING IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE; AND (B) NEITHER SMALL MARKET, ITS SUBSIDIARIES OR ITS AFFILIATES, NOR OUR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS OR SERVICE PROVIDERS, NOR OUR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, “SMALL MARKET PARTIES”), MAKE ANY WARRANTY THAT THE CONTENT OF THE ONLINE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE ONLINE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR THAT ACCESS THERETO WILL BE UNINTERRUPTED; THAT THE ONLINE SERVICES ARE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE ONLINE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY INSTRUCTIONS, DIRECTIONS OR RECOMMENDATIONS AVAILABLE THROUGH THE ONLINE SERVICES. ALL DISCLAIMERS OF ANY KIND IN THESE TERMS OF USE (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE) ARE MADE ON BEHALF OF BOTH SMALL MARKET AND THE SMALL MARKET PARTIES.

LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT PROHIBITED BY APPLCIABLE LAW, UNDER NO CIRCUMSTANCES SHALL SMALL MARKET OR ANY SMALL MARKET PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT ARISE OUT OF OR ARE RELATED TO THE OFFERING OR THESE TERMS OF USE, INCLUDING DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE ONLINE SERVICES, RESOURCES, PRODUCTS, THIRD PARTY RESOURCES OR FROM INFORMATION MADE AVAILABLE THROUGH THE ONLINE SERVICES OR ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH. THE FOREGOING LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE.

YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE OFFERING IS TO STOP USING THE ONLINE SERVICES. THE MAXIMUM LIABILITY OF SMALL MARKET AND ALL SMALL MARKET PARTIES, IN THE AGGREGATE, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE OFFERING OR THESE TERMS OF USE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS (EVEN IF WE HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE), SHALL BE THE GREATER OF (A) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO SMALL MARKET SOLELY TO USE THE ONLINE SERVICES; AND (B) ONE HUNDRED U.S. DOLLARS ($100).

INDEMNITY

Except to the extent prohibited by applicable law, you agree to defend, indemnify and hold harmless Small Market, its subsidiaries, officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from your use of and access to the Online Services, or your violation of these Terms of Use. This defense and indemnification obligation will survive these Terms of Use and your use of the Online Services.

ARBITRATION AGREEMENT; CLASS WAIVER; JURY WAIVER

EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE ONLINE SERVICES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT, WITH RESPECT TO ANY DISPUTE, (A) SMALL MARKET AND YOU ARE EACH WAIVING THE RIGHT TO A COURT ACTION AND A TRIAL BY A JURY, (B) ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS, (C) CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND (D) YOU ARE GIVING UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.

The arbitration will be administered in San Francisco County by the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules.

NOTICE REQUIREMENT AND INFORMAL DISPUTE RESOLUTION.

Before either party may seek arbitration, the party must first send to the other party a written notice describing the nature and basis of the claim or dispute, and the requested relief. 

UPDATES TO THE TERMS OF USE

We may change these Terms of Use at any time, and we may notify you of such changes by any reasonable means, including by making the updated Terms of Use available through the Online Services. Any such changes will not apply to any dispute between you and us arising prior to the date on which we make available the updated Terms of Use incorporating such changes, or otherwise notify you of such changes. Your continued use of the Online Services following any changes to these Terms of Use indicates your agreement to the updated Terms of Use. Accordingly, we urge you to review any updated Terms of Use, and if you do not agree to such updated Terms of Use, do not access or use the Online Services. The “Last modified” legend below indicates when these Terms of Use were last updated.

GOVERNING LAW, VENUE AND JURISDICTION

To the extent the parties are permitted under these Terms of Use to initiate litigation in court, both you and Small Market agree that all claims and disputes, including statutory claims and disputes, arising out of or relating to these Terms of Use or other Small Market policies, shall be governed in all respects by the laws of the State of California, without regard to its conflict of law principles. You and Small Market hereby consent to submit to the jurisdiction of the federal and state courts sitting in San Francisco County for any actions, suits or proceedings arising out of or relating to these Terms of Use, or other Small Market policies.

ASSIGNMENT

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Small Market, without restriction.

APPLE-SPECIFIC TERMS

Notwithstanding anything to the contrary in these Terms of Use, the following provisions in this section apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to these Terms of Use and does not own and is not responsible for the App or the content thereof. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the App, including those pertaining to intellectual property rights, must be directed to Small Market.

ENTIRE AGREEMENT

These Terms of Use, and any other polices published by the Small Market facilities or Online Services, shall constitute the entire agreement between you and Small Market concerning the Online Services. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Small Market’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

CONTACT US

We welcome your feedback. Please contact us by emailing theboomboxsf@gmail.com with any questions or comments regarding these Terms of Use.

Small Market, LLC d/b/a The Boombox Studio is located at 2109 Market Street, San Francisco, California 94114.

Last modified March 9, 2018