TERMS OF SERVICE
Date of Last Revision: November 28, 2017
1. USING OUR SERVICES:
You may use our Services only if you can form a binding contract with Company. Use of the Services is not permitted by anyone under the age of thirteen (13) or under the age of majority in their state of residence. If you are using the Services on behalf of any entity, then you are agreeing to the Terms on behalf of that entity. Your use of our Services does not give you ownership of any intellectual property rights in our Services or in the content you access. You may not use content from our Services unless you obtain permission from Company, or the owner of the content if not Company, or are otherwise permitted by law. Without our express written permission you do not have the right to use any of Company’s trademarks, branding or logos used in our Services.
2. WEBSITE PLATFORM:
The Site is a platform where Customers contact and engage AFP to arrange for princess, fairytale, superhero, and other assorted party entertainment for Customers. Typically most parties are geared for children, although some are adult and/or corporate oriented. From Customer, AFP solicits the date, time, location and type of party desired, the number of individuals to provide entertainment at the party (the “Party Performer(s)”), and AFP negotiates the gross price for the party (the “Party Price”), including the amount of the Party Price AFP will collect upon booking as its compensation (“AFP’s Compensation”) and the amount the Customer will pay the Party Performer(s) at the time of the party (“Party Performer’s Compensation”). Upon receipt of such information AFP contacts multiple independent contractor Party Performer(s) who may be interested in servicing the party. After a Party Performer agrees to service the party, AFP books the party and collects AFP’s Compensation. As noted, at the time of the party Customer pays Party Performer’s Compensation directly to Party Performer. Notwithstanding the foregoing, in some instances as the parties and the Party Performer may agree, AFP may collect the entire Party Price and pay Party Performer its Party Performer’s Compensation directly.
3. ACKNOWLEDGMENTS AND PROVISIONS:
Customer and AFP agree and acknowledge that:
(a) Party Performer is an independent contractor and not an employee of AFP; that Party
Performer will be providing its own equipment to service the party, including but not limited to, costumes, makeup, and props and Party Performer will determine the manner in which it performs and the activities it shall present at the party and that Party Performer will be providing its own transportation to and from the party;
(b) Customer shall pay Party Performer its Party Performer Compensation at the time of the party unless otherwise arranged in writing AFP;
(c) Once a party is booked, the AFP Compensation Customer has paid is non refundable;
(d) Once a party is booked, upon twenty-four hours to the scheduled party time Customer may request a change to the dates, times, and Party Performer. AFP will endeavor to reschedule the party it has the dates, times, and Party Performer available.
(e) Should Customer request a specific Party Performer for the party, AFP will endeavor to have such Party Performer at the party. Notwithstanding, AFP reserves the right to change the Party Performer if the requested Party Performer becomes ill, or is no longer available;
(f) Customer waives any claims it may have against AFP arising from any actions or activities of Party Performer and Customer indemnifies and holds AFP harmless from any damages Customer may sustain arising from Party Performer’s actions or activities;
(g) If a Party Performer does not show up at the party, and AFP cannot send a replacement Party Performer, AFP shall refund all of the Party Price Customer has actually paid to AFP and/or the Party Performer. Upon AFP’s refund of such payment Customer is made whole again, and waives any claims, suites, legal, or other action against AFP and/or Party Performer; and
(h) That AFP is not associated or affiliated with the Walt Disney Company, Marvel Comics, DC Comics, or other third parties, owning rights to well known fairytale, super hero, or other characters and associated stories.
4. CONTENT; PROPRIETARY RIGHTS:
(a) The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to the Site, are protected under applicable copyrights, trademarks and other proprietary rights and belong exclusively to Company, Party Performer, or other third parties. The copying, redistribution, publication or sale by you of any part of the Site is strictly prohibited. You do not acquire ownership rights to any content, document, software, services or other materials viewed at or through the Site. The posting of information or material on the Site by Company does not constitute a waiver of any right in such information and/or materials.
(b) Amazing Fairytale Party, LLC, amazingfairytaleparties.com are trademarks and service marks of the Company (the “Marks”). Other company, product, and service names and logos used and displayed on the Site may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us.
Nothing on this Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Marks displayed on the Site, without AFP’s prior written permission in each instance. All goodwill generated from the use of the Marks will inure to our benefit.
(c) By submitting or posting on the Site, or posting on any websites not owned by AFP, any unsolicited information and materials, including, but not limited to, reviews, comments, ideas, questions, photographs and other similar communications regarding AFP to any parties it has planned (collectively, “Unsolicited Information”), Customer agrees to be bound by the terms and conditions contained in this Paragraph 4, and all other terms and conditions contained in these Terms of Service. If you do not agree with these obligations, you should not provide any Unsolicited Information through the Site, or posting on websites not owned by AFP. All Unsolicited Information will be considered non-confidential and non-proprietary. AFP, or any of our affiliates including, but not limited to, Party Performer(s), may use such communication or material for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and further posting in any media whatsoever. By submitting any Unsolicited Information, you are granting AFP, and such third parties, a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer, and sell such Unsolicited Information and to use your name and other identifying information in connection with such Unsolicited Information.
(d) Company is not responsible for Unsolicited Information posted. Responsibility lies with each user who posts such Unsolicited Information or otherwise makes it available on the Site. Such users are solely responsible for credibility of their Unsolicited Information posted. Company does not control the Unsolicited Information posted or otherwise make available, and such users understand that Company has no obligation to monitor any such Unsolicited Information posted or to edit or delete it. Notwithstanding the foregoing, Company reserves the right to do so. Company is not a publisher of such user Unsolicited Information posted and Company is not responsible for such user posts’ accuracy or legality.
(e) Company reserves the right to pre-screen, refuse and/or delete any content currently available through our Services including, but not limited to, content posted by Party Performer(s). Company reserves the right to remove and/or delete any such content that would violate the TOS or which would otherwise be considered offensive to other visitors, users and/or other Party Performer(s).
(f) Company herein reserves the right to access, preserve and/or disclose user or Party Performer account information and/or content if it is requested to do so by law or in good faith belief that any such action is deemed reasonably necessary for:
i. compliance with any legal process;
ii. enforcement of the TOS;
iii. responding to any claim that therein contained content is in violation of the rights of any third party;
iv. responding to requests for customer service; or
v. protecting the rights, property or the personal safety of Company, its visitors, users and Party Performer(s), including the general public.
(g) Company herein reserves the right to include the use of security components that may permit digital information or material to be protected, and that such use of information and/or material is subject to usage guidelines and regulations established by Company or any other Party Performer(s) supplying content to Company. You are hereby prohibited from making any attempt to override or circumvent any of the embedded usage rules in our Services. Unauthorized reproduction, publication, distribution, or exhibition of any information or materials supplied by our Services, despite whether done so in whole or in part, is expressly prohibited.
5: USER CONDUCT:
As a condition of your access and use of the Site and Services you agree not to use the Site and Services for any purpose that is unlawful or prohibited by these Terms of Service including, but not limited to, engaging in the following actions:
(a) intentionally or unintentionally violating the Terms of Service, or any applicable local, state, federal or international laws, or and any rules and regulations having the force of law;
(b) using the Site and Services in any manner that infringes, misappropriates or violates any third party’s rights, including, but not limited to, transmitting any content that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, fiduciary rights or intellectual property rights;
(c) using the Site and Services or its content for any purposes not authorized by the Terms of Service, including commercial, political, or religious purposes, or causing the submission or transmission of any content that contains advertisements, promotional materials, junk mail, or any other form of solicitation;
(d) reproducing, duplicating, coping, modifying, selling, re-selling or exploiting any content or the Site and Services for any commercial, educational, or any other non-personal purpose, without the express written consent of Company, and which consent Company may withhold in its sole discretion;
(e) posting irrelevant content, repeatedly posting the same or similar content;
(f) uploading, posting, emailing, transmitting, or otherwise offering any unsolicited or unauthorized advertising, promotional flyers, “junk mail,” “spam,” or any other form of solicitation, except in any such areas that may have been designated for such purpose;
(g) uploading, posting, emailing, transmitting, or otherwise offering any source that may
contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment;
(h) knowingly providing or submitting false or misleading information;
(i) using the Site or Services if you are under the age of thirteen (13) or under the age of majority in your state of residence;
(j) attempting to gain unauthorized access to the Site and Services, other user or Party Performer accounts, if any, or other computer systems, social media accounts, or networks connected to the Site and Services including, but not limited to AFP’s Facebook account.
(k) using the Site and Services in any way that could interfere with Company’s rights or the rights of other users or Party Performer(s);
(l) uploading, posting, emailing, transmitting, or otherwise making available any content that shall be deemed unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or invasive of another’s privacy or which is hateful, and/or racially, ethnically, or otherwise objectionable;
(m) causing harm to minors in any manner whatsoever;
(n) “stalking” or with the intent to otherwise harass another individual; and/or
(o) harassing, threatening, intimidating, impersonating, or attempting to impersonate, any other person, falsifying your contact or other information, or otherwise attempting to mislead others as to the identity of the sender;
(p) attempting to gain unauthorized access to the Site and Services, or any other systems, social media platforms, or networks connected to the Site and Services or to any Party Performer account by hacking, password ‘mining’ or any other illegitimate or unauthorized means, including attempting to obtain password, account, or any other personal or private information from any other website;
(q) accessing, obtaining, using, or copying any information contained on the Site by ‘deep-link’, ‘scraper’, ‘robot’, ‘spider’ or other automatic or artificial devices, programs, algorithms or methodology, or any similar or equivalent automatic or manual process;
(r) testing the vulnerability of the Site and Services or any network connected to the Site and
Services by any means including, but not limited to probing or scanning or otherwise breaching the security or authentication measures on or of the Site and Services;
(s) imposing an unreasonable or large load on the Site through a Denial of Service or other type of attack, or otherwise interfering with the proper working of the Site and Services; and
(t) selling, sharing, or otherwise transferring your account username, password, other information, or your rights or obligations under these Terms of Service to any third party.
Either Company or any third parties may provide links to other websites and/or resources. You agree and acknowledge that Company is not responsible for the availability of any such external sites or resources, and Company does not endorse nor is Company responsible or liable for any content, products, advertising or any other materials, on or available from such third party sites or resources. You agree and acknowledge that Company shall not be responsible or liable, directly or indirectly, for any such damage or loss which may be a result of, caused or allegedly to be caused by or in connection with the use of or the reliance on any such content, goods or services made available on or through any such site or resource.
In the event you have a dispute, you agree to release Company (and its owners, officers, directors, employees, agents, parent subsidiaries, affiliates, co-branders, partners and any other third parties) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected or unsuspected, disclosed and undisclosed, arising out of or in any way connected to such dispute.
All users and/or Party Performer(s) agree to insure and hold Company, it owners, our subsidiaries, affiliates, agents, employees, officers, partners and/or licensors blameless or not liable for any claim or demand, which may include, but is not limited to, reasonable attorney fees made by any third party which may arise from any content a Party Performer or user of our Site may submit, post, modify, transmit or otherwise make available through our Services, or your connection with these Services, your violations of the Terms of Service and/or your violation of any such rights of another person.
9. DELAYS AND ACCESSIBILITY:
The Site and Services may be subject to limitations, delays, failure, and other problems inherent in the use of the Internet and electronic communications. Company is not responsible for any delays, failures or other damage resulting from such problems.
10. THIRD PARTY BENEFICIARIES:
You herein acknowledge, understand and agree, unless otherwise expressly provided in this TOS, that there shall be no third-party beneficiaries to this agreement.
11. NO RIGHT OF SURVIVORSHIP; NON-TRANSFERABILITY:
You acknowledge, understand and agree that your account, if any is available on the Site, is non-transferable and any rights to your ID and/or contents within your account shall terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
12. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS NOTICE & PROCEDURES; COUNTER NOTICES:
(a) Company will always respect the intellectual property of others, and we ask that all of our users do the same. With regards to appropriate circumstances and at its sole discretion, Company may disable and/or terminate the accounts of any user who violates our TOS and/or infringes the rights of others. If you feel that your work has been duplicated in such a way that would constitute copyright infringement, or if you believe your intellectual property rights have been otherwise violated, you may file a U.S. Digital Millennium Copyright Act (“DMCA”) Notice of Alleged Infringement with the Site’s Designated Copyright Agent by providing us with the following information:
i. The electronic or the physical signature of the individual that is authorized on behalf of the owner of the copyright or other intellectual property interest;
ii. A description of the copyrighted work or other intellectual property that you believe has been infringed upon;
iii. A description of the location of the site which you allege has been infringing upon your work; iv. Your physical address, telephone number, and email address;
vii. A statement, in which you state that the alleged and disputed use of your work is not authorized by the copyright owner, its agents or the law; and
viii. A statement, made under penalty of perjury, that the aforementioned information in your notice is truthful and accurate, and that you are the copyright or intellectual property owner, representative or agent authorized to act on the copyright or intellectual property owner’s behalf.
Company’s Designated Copyright Agent for notice of claims of copyright or other intellectual property infringement under DMCA, or otherwise, can be contacted as follows:
Attn: Stephanie Werba
Amazing Fairytale Parties LLC
PO BOX 384 BERTHOUD, CO 80513
(b) If we remove or disable access to Content in response to an infringement notice, we may make reasonable attempts to contact the owner or administrator of the affected content. If your material has been removed and you feel that your material does not constitute infringement, you may provide us with a counter notification by written communication to the attention of Company’s aforementioned agent for notice of claims of copyright or other intellectual property infringement, at his designated address and/or email that states all of the necessary information required by the DMCA (see: http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.
13. WARRANTY DISCLAIMERS:
YOU HEREIN EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
(a) THE USE OF COMPANY’s SERVICES AND THE SITE ARE AT THE SOLE RISK BY YOU. OUR SERVICES AND SITE SHALL BE PROVIDED ON AN “AS IS” AND/OR “AS AVAILABLE” BASIS. COMPANY AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) COMPANY AND OUR SUBSIDIARIES, OWNERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO SUCH WARRANTIES THAT (i) COMPANY SERVICES OR THE SITE WILL MEET YOUR REQUIREMENTS; (ii) COMPANY SERVICES OR THE SITE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THAT SUCH RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE COMPANY’S SITE OR SERVICES WILL BE ACCURATE OR RELIABLE; (iv) QUALITY OF ANY PRODUCTS, SERVICES, ANY INFORMATION OR OTHER MATERIAL OR CONTENT WHICH MAY BE ACCESSED, PURCHASED OR OBTAINED BY YOU THROUGH OUR SITE OR SERVICES WILL MEET YOUR EXPECTATIONS; AND (v) THAT ANY SUCH ERRORS CONTAINED IN THE SITE OR SERVICES SHALL BE CORRECTED.
(c) ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY WAY OF THE SITE OR SERVICES SHALL BE ACCESSED BY YOUR SOLE DISCRETION AND SOLE RISK, AND AS SUCH YOU SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER AND/OR INTERNET ACCESS, DOWNLOADING AND/OR DISPLAYING, OR FOR ANY LOSS OF DATA THAT COULD RESULT FROM ACCESSING THE SITE OR USING ANY SERVICES OR DOWNLOAD OF ANY SUCH INFORMATION OR MATERIAL OR CONTENT.
(d) NO ADVICE AND/OR INFORMATION, DESPITE WHETHER WRITTEN OR ORAL, THAT MAY BE OBTAINED BY YOU FROM COMPANY OR BY WAY OF OR FROM OUR SERVICES OR THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
(e) A SMALL PERCENTAGE OF SOME USERS MAY EXPERIENCE SOME DEGREE OF EPILEPTIC SEIZURE WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS THAT MAY BE CONTAINED ON A COMPUTER SCREEN OR WHILE USING OUR SERVICES. CERTAIN CONDITIONS MAY INDUCE A PREVIOUSLY UNKNOWN CONDITION OR UNDETECTED EPILEPTIC SYMPTOM IN USERS WHO HAVE SHOWN NO HISTORY OF ANY PRIOR SEIZURE OR EPILEPSY. SHOULD YOU, ANYONE YOU KNOW OR ANYONE IN YOUR FAMILY HAVE AN EPILEPTIC CONDITION, PLEASE CONSULT A PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING OUR SERVICES: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
14. LIMITATION OF LIABILITY:
YOU EXPLICITLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT COMPANY , ITS OWNERS, AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, PARTY PERFORMER(S), EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES WHICH MAY BE RELATED TO THE LOSS OF ANY PROFITS, GOODWILL, USE, DATA AND/OR OTHER INTANGIBLE LOSSES, EVEN THOUGH WE MAY HAVE BEEN ADVISED OF SUCH POSSIBILITY THAT SAID DAMAGES MAY OCCUR, AND RESULT FROM:
(a) THE USE OR INABILITY TO USE OUR SERVICE;
(b) THE COST OF PROCURING SUBSTITUTE GOODS AND SERVICES;
(c) UNAUTHORIZED ACCESS TO OR THE ALTERATION OF YOUR TRANSMISSIONS AND/OR DATA;
(d) STATEMENTS OR CONDUCT OF ANY SUCH THIRD PARTY ON OUR SERVICE;
(e) AND ANY OTHER MATTER WHICH MAY BE RELATED TO OUR SERVICE.
15. EXCLUSION AND LIMITATIONS:
THERE ARE SOME JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS OF SECTIONS WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
The captions herein are inserted for convenience only and shall not be deemed a part hereof.
17. CHOICE OF LAW AND FORUM:
It is at the mutual agreement of both you and Company with regard to the TOS that the relationship between the parties shall be governed by the laws of the State of Oregon without regard to its conflict of law provisions and that any and all claims, causes of action and/or disputes, arising out of or relating to the TOS, or the relationship between you and Company, shall be filed within the courts having jurisdiction within the Multnomah County, Oregon or the U.S. District Court located Multnomah County, Oregon. You and Company agree to submit to the jurisdiction of the courts as previously mentioned, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
18. WAIVER AND SEVERABILITY OF TERMS:
At any time, should Company fail to exercise or enforce any right or provision of the TOS, such failure shall not constitute a waiver of such right or provision. If any provision of this TOS is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
19. ENTIRE AGREEMENT:
This TOS constitutes the entire agreement between you and Company and shall govern the use of access to our Site and Services, superseding any prior version of this TOS between you and us with respect to Company’s Site and Services. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other Company Services, Party Performer services, or other third-party content or services.