Last updated: May 27, 2016
As part of its mission, SFMOMA (“SFMOMA”, “us” or “we”) seeks to engage a varied audience with the ideas, forms, and makers of the art of our time. In support of its mission, SFMOMA has created and maintains the SFMOMA website at sfmoma.org (the “Site”), and an applications for your mobile device (the “App”). The following terms and conditions (the “Terms”) govern your access and use of the Site, App, SFMOMA pages on third-party hosted sites, as well as all related web sites, networks, downloadable software, and other services provided by SFMOMA and on which a link to these Terms is displayed (collectively, together with the App and Site, the “Service”) . These Terms are a legally binding contract between you and SFMOMA regarding your use of the Service. If you are using the Service on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then (i) you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to the Terms and agree to be bound by the Terms on behalf of such Subscribing Organization, and (ii) references to “you” in these Terms will be deemed to refer to you individually, such Subscribing Organization, and any other individuals accessing or using the Service on behalf of the Subscribing Organization.
These Terms provide that all disputes between you and SFMOMA will be resolved by BINDING ARBITRATION AND BY ACCEPTING THESE TERMS, YOU AND SFMOMA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION . YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review section 26 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with SFMOMA.
2. Acceptance of Terms and Conditions
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU FULLY ACKNOWLEDGE AND ACCEPT THESE TERMS, INCLUDING ANY ADDITIONAL POSTED GUIDELINES OR RULES APPLICABLE TO SPECIFIC SERVICES AND FEATURES THAT MAY BE POSTED FROM TIME TO TIME.
You must be at least 13 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations.
4. Accounts and Registration
To access some features of the Service, you must register for an SFMOMA account. When you register for an SFMOMA account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your SFMOMA account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
You may apply for SFMOMA membership, make a donation, purchase tickets to SFMOMA events, purchase merchandise from our online store, or undertake other monetary transactions (collectively, “Transactions”) through the Service. Before you undertake any Transaction through the Service, you will have an opportunity to review and accept the sum that you will be charged. All sums are in U.S. dollars and are nonrefundable. SFMOMA will charge the payment method you specify at the time of Transaction. You authorize SFMOMA to charge all sums as described in these Terms to that payment method. If you pay any sums with a credit card, SFMOMA may seek pre-authorization of your credit card account prior to your Transaction to verify that the credit card is valid and has the necessary funds or credit available to cover your Transaction.
6. Protection of Privacy
7. Location Information
8. Right to Use the App
On the condition that you fully comply with these Terms, SFMOMA grants you a limited, nonexclusive, non-transferable and revocable license to access and use the App on compatible mobile devices that you own or control for your own personal, non-commercial use. SFMOMA reserves all rights not expressly granted to you. The terms of this license will also govern any upgrades provided by SFMOMA that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Except as expressly authorized by these Terms, you may not (a) modify, disclose, alter, translate or create derivative works of the App, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the App, (c) disassemble, decompile or reverse engineer any of the software components of the App, (d) copy, frame or mirror any part of the App, (e) interfere with or disrupt the integrity or performance of the App or (f) attempt to gain unauthorized access to the App or its related systems or networks.
9. Modification of the Terms
We reserve the right, at our sole discretion, to modify these Terms on a going-forward basis at any time. Please check the Terms periodically for changes. In addition to posting the modified Terms to the Service and indicating the date of last modification, if our modifications are material, we will make commercially reasonable efforts to notify you electronically. For example, we may send a message to your email address, if we have one on file, or we may display a notice on the Service indicating that the Terms have changed. Modifications are effective upon the earlier of (i) your acceptance of the modified Terms, (ii) your use of the Service with actual knowledge of the modified Terms, or (iii) thirty days following the publication of the modified Terms. Notwithstanding the foregoing, (a) disputes between you and SFMOMA will be resolved in accordance with the version of the Terms in effect at the time the dispute arose, and (b) if you do not agree with any modification to the Terms, you may terminate this agreement by ceasing use of the Service. Your continued use of the Service after new and/or revised Terms are effective indicates that you have read, understood, and agreed to those Terms.
10. Guidelines for Use of the Service
By using the Service, you agree not to:
a) use the Service for any purpose or activity (or to solicit the performance of any activity) that is unlawful or prohibited (including, without limitation, the prohibitions in this section) by the Terms;
b) use the Service if you do not meet the eligibility requirements described in section 3 above;
c) defame, harass, abuse, threaten, stalk, or defraud users of the Service. You further agree not to collect or attempt to collect personal information about users or third parties without their consent;
d) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
e) post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
f) intentionally interfere with or damage, impair, or disable the operation of the Service or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code;
g) remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service, or features that enforce limitations on the use of the Service;
h) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, or any part of them through hacking, password mining, or any other means;
i) access or use any automated process (such as a robot, spider, scraper, or similar) to access the Service in violation of our robot exclusion headers, or for the purpose of scraping all or a substantial portion of the content of the Service (other than in connection with bona fide search engine indexing), or as may otherwise be expressly permitted by SFMOMA;
j) make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
k) impersonate another person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity, or access any other Service account without permission or in excess of any account permissions you may have; or
l) attempt to do any of the acts described in this section 10, or assist or permit any person in engaging in any of the acts described in this section 10.
11. Permitted Use of Materials
SFMOMA and its licensors are the owners of the text, images, marks, data, audio, video, design, visual interfaces, graphics, computer code (including source code or object code), and all other content that is posted on this Service, but excluding any Non-SFMOMA Content (as defined below) (collectively the “Materials”).
Except as expressly authorized by SFMOMA and/or the applicable rights holder, or except for parts of the Service expressly subject to a separate license (in which case such license will govern use of that part of the Service), the Materials are made available for limited noncommercial, educational, and personal use only, or for fair use as defined in United States copyright laws. Additional terms or restrictions may be specified in the metadata or SFMOMA policies applicable to the Materials. You must, however, cite the author and source of the Materials as you would material from any printed work, and the citations should include the URL “www.sfmoma.org.” By downloading, printing, or otherwise using Materials, whether accessed directly from the Service or via other sites, services or mechanisms, you agree that you will limit your use of such files to noncommercial, educational, or personal use, or for fair use, and will not violate the SFMOMA’s or any other party’s proprietary rights or applicable policies. You may not remove any copyright, trademark, or other proprietary notices, including without limitation attribution information, credits, and copyright notices that have been placed on or near the Materials by SFMOMA.
Information on United States copyright fair use law is available from the United States Copyright Office at http://www.copyright.gov/fls/fl102.html. Please note that you are responsible for determining whether your use is fair and/or for responding to any claims that may arise from your use.
12. Requesting Permission
A. Generally. We are committed to protecting the intellectual property rights and other rights of artists and others who hold those rights. SFMOMA expressly prohibits the copying, distribution, modification, or public display or performance of any Materials or Non-SFMOMA Content on this Service except as explicitly set forth herein. If you wish to use any of the Materials or Non-SFMOMA Content, you must receive prior written permission from us (and/or the other owner of rights to the Materials as applicable) unless such use is explicitly permitted in the Terms. We do not warrant that any permitted use of the Materials will not infringe the rights of third parties not affiliated with SFMOMA. We review all written requests, and permission may be granted on a case-by-case basis at our sole discretion. A fee may be involved depending on the nature of the proposed use.
B. Artists’ Rights Societies. Access to images of works in SFMOMA’s collection may be available through SFMOMA’s senior intellectual property associate, whose contact information is listed below; however, you must secure any other necessary permissions from any third-party rights holders. For example:
Reproduction of any images © VAGA is prohibited without written authorization from Visual Artists and Galleries Association Inc. (VAGA).
Reproduction of any images © Artists Rights Society (ARS) is prohibited without written authorization from Artists Rights Society (ARS).
The trademarks, service marks, and logos (collectively, “Trademarks”) used and displayed on this Service are registered and unregistered marks of SFMOMA and others. Nothing on this Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark. SFMOMA’s Trademarks may not be used in any way without our prior, written permission.
14. User-Generated Content
(a) General. We invite users to engage with us by submitting content (such as comments, images, and tags) (“User Content”) to certain areas of our Service, including our blog, Open Space, and the interactive feature The Country Dog Gentlemen Travel to Extraordinary Worlds. While welcoming diverse perspectives and insights, we reserve the right, but not the obligation, to delete any User Content that we deem inappropriate at our sole discretion. The following types of User Content are inappropriate and are strictly forbidden: content that infringes, violates, or misappropriates the rights of any other person or third party such as intellectual property rights, publicity rights, or privacy rights; content that is threatening, defamatory, obscene, abusive, or harmful to minors; content that is false or misleading; content that contains viruses, corrupted files, or other materials that may cause damage to another’s computer; advertisements, spam, or other forms of solicitation; content that could violate any law or regulation; content that we otherwise find inappropriate at our sole discretion. We make no representations that your User Content will remain available via the Service in any way. We do not guarantee any confidentiality with respect to any submission, and we are not obligated to refuse, modify, or remove any submission, in whole or in part.
(b) Grant of Rights. By submitting User Content to us, you hereby grant SFMOMA and its affiliates a worldwide, nonexclusive, fully paid-up, royalty-free, perpetual, irrevocable, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, host, store, transfer and otherwise exploit your User Content in connection with the Service and SFMOMA’s business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to uses of your User Content authorized herein.
(c) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of posting such User Content. In connection with User Content, you affirm, represent, and/or warrant that: (a) you own, or have the necessary licenses, rights, consents, and permissions to grant the licenses to, User Content contemplated by these Terms; and (b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) cause SFMOMA to violate any law or regulation.
15. Non-SFMOMA Content
You understand that when using the Service you will be exposed to User Content and other third-party content (together, the “Non-SFMOMA Content”) from a variety of sources. We are under no obligation to monitor the Non-SFMOMA Content and assume no responsibility or liability arising from the Non-SFMOMA Content nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in the Non-SFMOMA Content. If at any time, we choose, at our sole discretion, to monitor the Non-SFMOMA Content, we nonetheless assume no responsibility for the Non-SFMOMA Content, no obligation to modify or remove any inappropriate Non-SFMOMA Content, and no responsibility for the conduct of the user submitting any such Non-SFMOMA Content. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials.
16. Third Party Software
The Service may include open source or other third party software provided under separate third party license terms. Any such third party software is made available to you under the terms of the applicable licenses. Please review the information at https://sfmoma.snaphire.com/privacy for the applicable notices and license terms.
17. Third Party Fees
You agree that your use of the Service may incur third party fees, such as fees charged by your mobile network operator’s for data usage, and may be subject to third party terms, such as your mobile network operator’s terms of service, and you agree to pay all such fees and abide by all such terms.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant SFMOMA an unrestricted, perpetual, irrevocable, nonexclusive, fully paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
19. Digital Millennium Copyright Act
It is SFMOMA’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. If you have an intellectual property rights–related complaint about anything posted on the Service, you may contact our designated agent at the following address:
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good-faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
For more information, please go to SFMOMA’s DMCA Notification Guidelines. SFMOMA will promptly terminate without notice any access to the Service if you are determined by SFMOMA in its sole discretion to be a “repeat infringer.”
This Service may contain links to third-party websites (“Linked Services”). We are not responsible for any Content on any Linked Service. We provide these links as a convenience only, and a link does not imply endorsement, sponsorship, or any affiliation with the Linked Services. Linked Services are governed by their own terms and policies, which SFMOMA encourages you to read, should you choose to visit them.
21. Warranty and Indemnification
You represent and warrant that your use of the Service will be consistent with the Terms. You agree to indemnify, defend, and hold SFMOMA harmless from all claims, causes of action, allegations, costs, expenses, fees (including reasonable attorneys’ fees), judgments, liabilities, losses, and damages arising from or relating to your use of the Service.
22. Disclaimer of Warranties
ACCESS TO AND ALL MATERIALS ON THE SERVICE ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFMOMA DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THE IMPLIED CONDITION OF SATISFACTORY QUALITY, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SFMOMA DOES NOT WARRANT THAT THE SERVICE WILL PROVIDE CONTINUOUS, PROMPT, SECURE, OR ERROR- AND MALWARE-FREE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING SFMOMA OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
Some jurisdictions do not allow the exclusion of certain warranties, so the above exclusions may not apply to you.
23. Limitation of Liability
YOU EXPRESSLY UNDERSTAND THAT IN NO EVENT WILL SFMOMA OR ITS OFFICERS, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSS, WHETHER IN AN ACTION UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATING TO: (A) YOUR USE OF OR INABILITY TO USE THE SERVICE; (B) YOUR RELIANCE ON ANY CONTENT ON THE SERVICE; (C) ANY GOODS OR SERVICES PURCHASED THROUGH USE OF THE SERVICE; OR (D) ANY GOODS OR SERVICES ADVERTISED ON THE SERVICE; EVEN IF SFMOMA OR ANY RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THE TERMS, SFMOMA IS FOUND TO BE LIABLE TO USER FOR ANY DAMAGE OR LOSS WHICH ARISES IN ANY WAY (INCLUDING IN NEGLIGENCE) OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICE OR MATERIALS, SFMOMA’S LIABILITY SHALL (SAVE AS PROHIBITED BY APPLICABLE LAW) IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY AMOUNTS PAID BY USER TO SFMOMA IN RELATION TO THE PART OF THE SERVICE OR MATERIALS TO WHICH THE CLAIM RELATES IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM, OR (2) U.S. $100.
Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so some of the above limitations may not apply to you.
The Terms will continue to apply until terminated by either you or us as set out below. Your right to access and use the Service terminates automatically upon your breach of any of the Terms.
We may at any time: (a) modify, suspend, or terminate the operation of or access to any of the Service for any reason; (b) modify or change the Service for any reason; (c) interrupt the operation of the Service for any reason, all as we deem appropriate at our sole discretion.
Your access to, and use of, the Service may be terminated by you or by us at any time and for any reason. We will use reasonable efforts to notify you in advance about any material modification, suspension, or termination by us that is not caused by your breach of the Terms.
Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections 14 through 30. Any license to User Content granted by you herein shall continue in effect subject to the terms of the applicable license.
25. Governing Law and Jurisdiction
The Terms are governed by the laws of the State of California without giving effect to any principles of conflicts of law. If a lawsuit or court proceeding is permitted under these Terms, then you and SFMOMA agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California.
26. Dispute Resolution and Arbitration
26.1.Generally. In the interest of resolving disputes between you and SFMOMA in the most expedient and cost-effective manner, you and SFMOMA agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SFMOMA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
26.2. Exceptions. Despite the provisions of section 26.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
26.3. Arbitrator. Any arbitration between you and SFMOMA will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1.800.778.7879, or by contacting SFMOMA.
26.4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). SFMOMA’s address for Notice is: San Francisco Museum of Modern Art, 151 Third Street, San Francisco, CA 94103. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good-faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or SFMOMA may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or SFMOMA must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, SFMOMA will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by SFMOMA in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
26.5. Fees. If you commence arbitration in accordance with these Terms, SFMOMA will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non–appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse SFMOMA for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must 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.
26.6. No Class Actions. YOU AND SFMOMA 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 PROCEEDING. Further, unless both you and SFMOMA agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
26.7. Modifications to This Arbitration Provision. If SFMOMA makes any future change to this arbitration provision, other than a change to SFMOMA’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to SFMOMA’s address for Notice, in which case your account with SFMOMA will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
26.8. Enforceability. If section 26.6 is found to be unenforceable or if the entirety of this section 26 is found to be unenforceable, then the entirety of this section 26 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in section 21 will govern any action arising out of or related to these Terms.
The Terms express the complete understanding of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous communications and agreements, written or oral, regarding this Service. If any provision of the Terms or portion thereof is held invalid or unenforceable, such provision or portion thereof shall be deemed severed, and the remainder of the Terms shall remain in full force and effect. The failure by SFMOMA to insist upon or enforce strict performance of any provision of the Terms by you or others will not be construed as a waiver of any provision or right of SFMOMA. The Terms, and any rights and licenses granted hereunder, may not be assigned or transferred by you, but may be assigned by SFMOMA without restriction. Any assignment attempted to be made in violation of the Terms shall be void. Section headings used in this document are for convenience only and do not have any legal effect.
28. Consent to Electronic Communications
29. Notice Regarding Apple.
To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 29. You acknowledge that these Terms are between you and SFMOMA only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
For questions, inquiries, or correspondence, please contact: