BANG BANG NYC
Terms of Service
Last Revised: December 21, 2023
IMPORTANT: PLEASE READ ALL OF THE FOLLOWING TERMS OF SERVICE (THESE “TERMS”) CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT AND CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE (BUT ARE NOT LIMITED TO) VARIOUS LIMITATIONS AND EXCLUSIONS, A BINDING ARBITRATION CLAUSE, A CLASS ACTION WAIVER, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
Bang provides an online informational platform regarding the company’s tattooing services and related offerings (the “Platform” as further defined below). From time-to-time the Platform may also function as an e-commerce site for certain Bang merchandise. The Platform may be accessible by website (including through the Site, defined below), mobile application, or otherwise.
These Terms include not only the following Terms of Service, but also incorporate by reference all policies, guidelines, special or supplement terms and conditions of use or service posted by us on through the Platform from time to time and as such may be amended, modified, supplement or restated by Bang from time to time. Our Privacy Policy available at https://bangbangforever.com/legal/privacy (“Privacy Policy”) informs you of Bang’s collection and use of your information (if any), including your Personal Information as defined in the Privacy Policy, in relation to your use of our Platform and/or other related products or services we may make available to you via or in relation to your use of the Platform.
By accessing, browsing, submitting any information, to or through, or otherwise in any manner using the Platform, and linking to these Terms or by accessing, submitting any information to or through, or otherwise in any manner using any service offered on or though this Platform, You acknowledge that you have read and understand, and agree to be bound by and to comply with all of these Terms. If you do not agree to all of these Terms without any modification by you, you are not authorized to and must not access or use this Platform.
Any person who visits, uses, or accesses this Platform is referred to as a User. Users are also referred to in these Terms as “You”, “you”, “Your”, or “your.” If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Definitions
The following terms used in these Terms with their initial letters capitalized, and those terms defined in the introductory paragraphs or elsewhere in these Terms, throughout these Terms have the meanings provided.
“Account” means with respect to Users, the account created by us on or through the Platform for a User’s use in connection with certain User Features as may be offered from time to time through the Platform.
“Bang Content” means all Content that Bang makes available through the Platform including any Content licensed from a third party but excluding User Content.
“Bang Goods” means any merchandise offered for sale or sold by Bang to Users through the Platform.
“Bang Software” means any software, html, or other code, at any time or from time to time, in whole or in part, comprising the Platform or utilized by Bang through the Platform.
“Bang”, “we”, “us”, or “our,” shall refer to Keith McCurdy, LLC.
“Collective Content” means Bang Content and User Content.
“Content” means any text, graphics, images, music, software (excluding any Bang Software), audio, video, information, or other electronically stored data.
“Governmental Authority” means any domestic or foreign, federal, state, local, provincial, county, or municipal or supra national government or political subdivision thereof, or any agency, instrumentality, subdivision, court, tribunal, commission or other authority of such government or political subdivision, or any self-regulated, private, non-governmental or quasi-governmental organization, body or authority (to the extent that the rules, regulations or orders thereof have the force of Law).
“Intellectual Property Rights” means, with respect to any thing, material or work (hereinafter, a “Work”): (a) any and all worldwide copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights and legal protections in and to such Work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing; (b) all patents, patent applications, registrations and rights to make applications and registrations for the foregoing; (c) all goodwill associated with the foregoing; (d) all renewals, extensions, reversions or restorations of all such rights; (e) all works based upon, derived from, or incorporating the Work; (f) all income, royalties, claims, and payments now or hereafter due or payable with respect thereto; (g) all causes of action, either in law or in equity for past, present or future infringement based on the Work; (h) all rights corresponding to each of the foregoing throughout the world; and (i) all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, prepare derivative works from the Work, together with all physical or tangible embodiments of the Work.
“Law” or “Laws” means, as amended from time to time, any domestic or foreign federal, state, local, provincial, county, or municipal or supra national Law (including common law), rule, regulation, statute, treaty, constitution, ordinance, decree, code, proclamation, policy, procedure, guideline, standard, order, judgment, or other legally enforceable requirement enacted, issued, adopted, promulgated, enforced, ordered, or applied by any governmental authority.
“Platform” has the meaning ascribed to it in the second paragraph of these Terms.
“Services” means collectively all services Bang offers through the Platform to Users, including the Site, any User Feature, Bang Content, and Bang Software, among others.
“Site” means the website located at www.bangbangforever.com or its sub-domains.
“User Content” means all Content that a User provides, posts, uploads, publishes, submits, transmits, or makes available on the Platform, including but not limited to all such Content provided for purposes of establishing, initializing, modify, or creating an Account.
“User Feature” means any feature or functionality of the Platform which Bang may designate from time to time for use by Users for or in connection with the Bang Services.
“User” means any person or entity that uses or accesses the Platform or any User Feature, including but not limited to any person or entity who completes the Account registration process described under the “Account Registration” section below and who remains in good standing and has not otherwise been restricted or terminated by Bang.
Acknowledgements and Disclaimers
Explanation of the Site
Bang may provide from time to time an online interactive and informational website, the Site, through which it provides information regarding Bang’s tattooing services and related offerings. In some cases, the Site offers e-commerce services and/or provides links to third party dealers, distributors, e-commerce platforms, and our affiliates. NOTWITHSTANDING THE FOREGOING, YOU AGREE AND ACKNOWLEDGE THAT THE PLATFORM IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND NO OTHER PURPOSE.
Disclaimers
NEITHER WE NOR ANY OF OUR THIRD-PARTY LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY ASPECT OF THE PLATFORM TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE PLATFORM WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY MEMBER CONTENT) UPLOADED TO, DOWNLOADED FROM, OR STORED BY OR WITHIN THE PLATFORM WILL BE TIMELY, CURRENT OR SECURE, OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT WE WILL BE ABLE TO PREVENT DISRUPTION OF OR TO ANY OF THE PLATFORM OR THAT WE WILL CORRECT ANY DEFECTS.
IN NO EVENT WILL BANG BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES OR ANY INFORMATION OBTAINED THROUGH THE SERVICES, INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (EVEN IF BANG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMITTED BY LAW.
Modification of Platform or Terms
Bang reserves the right, at its sole discretion, to modify the Platform or to modify these Terms at any time and without prior notice, and without penalty. If we modify these Terms – which may include updating, revising, amending, supplementing, restating, or terminating these Terms – we will either post the modification on the Platform or otherwise provide you with notice of the modification. Please also refer to the “Last Updated” date indicated at the beginning of these Terms. Through continued access or use of the Platform after Bang has posted a modification thereon or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you must discontinue use of the Platform.
User Eligibility
The use of this Platform is intended for persons who are 18 years of age or older. Any access to or use of any User Features, or the Platform by anyone under 18 is prohibited. By accessing or utilizing any User Features on or through the Platform you represent and warrant that you are 18 years of age or older.
Accounts
Registration, Profile, and User Content
From time to time in order to access certain User Features you may be required to register to create an Account. You may register directly via the Platform or as described in this Section.
As a User, your Account and your Account profile page will be created based upon the User Content you provide to us. In some instances, Bang will provide you, either in person or by electronic means, information necessary to establish your Account. Any information that you provide, publish or post to or through the Platform (including any profile information you provide) or send to other Users (including via any feedback, text, any email feature, or through any Bang-related Facebook, Twitter or other social media posting) will be considered User Content. You consent to us using your User Content to create an Account that will allow you to utilize certain User Features of the site reserved for our Account-holders. Our collection and use of personal information in connection with the Platform is as provided in Bang’s Privacy Policy located at www.bangbangforever.com/privacy.html.
As a User, you are the sole authorized user of your Account (if applicable) and are responsible for maintaining the confidentiality of any password provided by you or Bang for accessing User Features. You are solely and fully responsible for all activities that occur under your Account (even if that content or activity occurs from other individuals who have accessed the Platform and other Services through your Account), and Bang expressly disclaims any liability arising from the unauthorized access or use of your Account. If at any time you suspect that any unauthorized party may be using your Account or you suspect any other breach of security, you agree to notify us immediately.
Limitation, Suspension, Termination, and Cancellation of Accounts
As a User, you may not have more than one (1) Account with Bang at any given time. Bang may, in our sole discretion and without thereby incurring any liability to you or otherwise, with or without cause, with or without prior notice and at any time, limit, suspend, deactivate, or cancel your Account and/or otherwise deny you access to the User Features, and particularly if you provide any false or misleading information, or otherwise violate any of these Terms..
You may cancel your Account at any time via the “Cancel Account” or other similarly designated feature of the Platform, or by notifying us thereof by e-mail at support@bangbangforever.com or by contacting us by telephone at (###) ###-####.
Bang Communications
You acknowledge that we may from time to time and as needed communicate with you by various means, including via e-mail, text message, telephone calls, and push notifications to the telephone number you provide to us, in relation to your use of the Platform and our tattooing services and offerings, or otherwise.
Please note communications from us may include communications generated by automatic telephone dialing systems or other methods and systems, which will deliver prerecorded messages sent by or on behalf of Bang, its affiliated companies, or other Users, including but not limited to operational communications concerning the Platform, use of User Features or other Services, and updates concerning new and existing features on the Bang Platform.
In other instances, we will seek your consent to receive our communications before contacting you by asking you to “opt-in” to such communications. This may include interaction with certain User Features such as our “Contact” or “Make an Appointment” features, receiving our newsletter, promotions and promotional materials provided by Bang or third parties, and updates and news concerning Bang.
Where we have already received your opt-in consent to receive certain communications, IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER SUCH “OPT-IN” COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS THAT ARE PROVIDED TO YOU ON THE PLATFORM OR VIA THE COMMUNICATION, IF APPLICABLE (e.g., the “unsubscribe” button in our promotional emails or a “STOP” message for text messaging). Standard text messaging charges applied by your telephone phone carrier will apply to text messages we send.
Order, Returns, and Other Financial Terms
Placing Orders
If the Platform offers Bang Goods for purchase, once you have successfully registered on the Platform as a User and your Account has thereby been established, you may place orders for Bang Goods through a User Feature on the Platform. Bang reserves the right, in its sole discretion and at any time after receiving any order from you for any Bang Goods, to accept, refuse, place on hold or cancel any order you submit to us, including the right to limit any quantities of Bang Goods you may wish to purchase.
Once we receive your order, we will provide you with an e-mail confirmation at the email address you provide for that purpose when you register on the Platform for an Account. Your receipt of an order confirmation does not signify Bang’s acceptance of your order or a confirmation of our offer to sell; but simply an acknowledgement that we received your order.
After receiving your order, Bang may contact you to request clarification, additional or missing information regarding your order or your Account. It is your responsibility to deliver to us in a timely manner all additional information related to your order we may request. Bang reserves the right, in its sole discretion, to place your order on-hold or even cancel it if any requested information is not received in time or is incomplete. Orders which we place on-hold may at any time thereafter be cancelled by us if there is any missing information which we require. With respect to any such orders which we cancel for which you have, at the time of cancellation, already have made payment for the Bang Goods in question, we will issue a credit or refund according to these Terms.
If you want to make any changes to an order, please contact us as soon as possible. Please note, however, that we do not guarantee that we will be able to make any changes to your order once placed, so make sure that you double check your selections before placing your order.
Payments and Authorizations
You agree to pay Bang for all fees and charges associated with the Services, if any. All fees and charges are due in full at the confirmation of your order. In the case of recurring subscriptions for certain User Features, all fees and charges are due on a recurring basis as explained in connection with such User Features.
In connection with any payments made through the Platform, You may be asked to provide customary billing information such as name, billing address and credit card or other payment information either to Bang or its third-party payment processor(s) (including by or through the applicable application store, such as the Apple App Store or Google Play Store). You agree to pay Bang for any purchases in connection with your Account or your use of any of the User Features, or otherwise provided to you or on your behalf, in each case by one of the payment methods from time to time described on provided for on the Platform, including the charging of the credit card account. You hereby authorize the payment and collection of any and all such amounts by the charging of the credit card, or via such other payment method provided for under your Account. If you are directed to any Bang third party payment processor(s), you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices.
In furtherance of your use of the User Features, you understand and agree that Bang reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card or other payment method for any fees or charges for or associated with any Bang Goods or (ii) charge your credit card or other payment method a nominal amount, not to exceed one dollar ($1) per verification, or a similar sum in the currency in which you are transacting, to verify your credit card or other payment method. As a general rule, Bang will collect any fees or charges due upon placement of your order. In our discretion such fees and charges may instead be collected by us at an earlier or later point.
Bang does not control, and is not responsible for, any fees or charges that may be charged to a User by your bank, financial institution, or payment provider, with respect to Bang’s collection of fees or payments, and Bang expressly disclaims all (and you agree that Bang will have no) liability in this regard.
Pick-Up and Shipping
Shipping charges and expected delivery dates may be displayed through the User Features at the time of your order, or may appear in an order confirmation e-mail. Based on our service locations and your shipping address, we determine the shipping carrier for your order. Carriers that may be used include, but are not limited to, the U.S. Postal Service (USPS), United Parcel Service (UPS), and FedEx. Occasionally, we may send your order in two or more shipments.
Returns
Bang takes pride in its products and desires that all Users are satisfied with their purchase. Our policy, however, is that all sales are final unless otherwise stated. If you believe there is an issue with your Bang Goods, please e-mail us at support@bangbangforever.com within five (5) days of receiving your order and we will do our best to resolve it for you. In no event, however, is Bang obligated to refund any purchase.
Promotions
Bang, at its sole discretion, may from time to time, make special offers or promotions (“Promotions’) available to some but not all Users, or to prospective Users. Promotions, which we may from time to time offer to our Users may not be the same and different Users may be offered different Promotions. Furthermore, prospective Users may also be offered different Promotions. No Promotion, unless and then only to the extent expressly made to you specifically, shall have any bearing whatsoever on your Account, these Terms or your relationship with Bang. Any promotional coupon, which we may utilize in connection with a Promotion is applied at the discretion of Bang, and while Bang may in connection with a Promotion reduce the cost of certain Bang Goods, if any, subject to such Promotion, based on an amount or discount value, stated by us in the Promotion, all other fees and charges for or in connection with Bang Goods, as well as, all shipping and handling (if applicable), and sales tax will still apply and be due to and payable to Bang.
User Conduct
You understand and agree that you alone are responsible, at your sole cost and expense, for compliance with any and all Laws that may apply to your use of the Platform or any feature thereof. In connection with your use of the Platform, you must not, and you agree that you shall never do or attempt to do any of the following:
violate any applicable Law or these Terms;
use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other features or services contained in or comprising the Platform;
use the Platform or any part thereof or any feature or functionality accessed on or through the Platform for any commercial or other purposes that are not expressly permitted by these Terms;
interfere with or damage the Platform, or any part thereof or any feature or functionality accessed on or through the Platform;
use the Platform, or any part thereof or any feature or functionality accessed on or through the Platform to transmit, distribute, post, or submit any information concerning any other person or entity;
use the Platform for the distribution of unsolicited commercial email (“spam”);
stalk, harass, or bully any other user of the Platform;
impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
post, upload, publish, submit or transmit any Content that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property Rights, or rights of publicity or privacy, (ii) violates, or encourages any conduct that would violate, any applicable Law or regulation or would give rise to civil liability, (iii) is fraudulent, false, misleading or deceptive, (iv) is defamatory, obscene, pornographic, vulgar or offensive, (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, (vi) is violent or threatening or promotes violence or actions that are threatening to any other person, or (vii) promotes illegal or harmful activities or substances;
use, display, mirror or frame the Platform;
access, tamper with, or use non-public areas of the Platform;
attempt to probe, scan, or test the vulnerability of the Platform or network or breach any security or authentication measures;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Bang to protect the Platform; or
attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Platform or any feature or functionality thereof.
Bang at all times has the right to investigate and may prosecute violations of any of the foregoing to the fullest extent of the Law. Bang reserves the right, at any time and without prior notice, to remove or disable access to any materials that Bang, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform.
Intellectual Property and User License Agreement
General Intellectual Property Provisions
The Platform is protected by copyright, trademark, and other Laws of the United States and foreign countries. You acknowledge and agree that the Platform, Services, and Bang Content, including all associated Intellectual Property Rights, are the exclusive property of Bang and its licensors (hereinafter “Bang Intellectual Property”). You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform or Collective Content. All trademarks, trade names, and source identifiers of Bang used on or in connection with the Platform are trademarks or registered trademarks of Bang. Trademarks, trade names, and any other source identifiers of third parties used on or in connection with the Platform are used for identification purposes only and may be the property of their respective owners.
Nothing in these Terms grants, transfers or conveys, nor may be construed or operate as a grant, transfer or conveyance, to any User or any other person of any right, title or interest in or to any of Bang Intellectual Property. No User or other person may use any of Bang Intellectual Property without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion.
Non-Assertion
You agree you shall not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, business partners, licensors, licensees or transferees, any patent infringement or other Intellectual Property infringement claim with respect to the Platform.
Bang License
Bang grants Users a limited, non-exclusive, non-transferable right and license, to (i) access and use the Platform; (ii) access and view any Bang Content solely for your use of the Platform and (iii) access and view any User Content to which you are permitted access, solely for your use of the Platform. You have no right to sublicense the license rights granted in this section. You agree not to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise to Bang Intellectual Property, except for the licenses and rights expressly granted in these Terms.
User Content License
Bang may, in our sole discretion, permit you to post, upload, publish, submit, or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to Bang a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, create derivative works (as defined in 17 U.S.C. § 101) from, and otherwise exploit such User Content on, through, by means of, or to promote or market the Platform. Except as set forth herein, Bang does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content. Notwithstanding the foregoing, all derivative works (as defined in 17 U.S.C. § 101) resulting from User Content that is created or authored by Bang or otherwise associated with any subsequent research by Bang or its affiliates or contractors, shall become the property of the Company.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Platform. Accordingly, you represent and warrant that you either are the sole and exclusive owner of all User Content that you make available through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to Bang the rights in such User Content, as contemplated under these Terms.
Suggestions
If you provide any suggested improvement(s) to the Platform or any feature or functionality thereof (each a “Suggestion” and collectively “Suggestions”) to Bang, you agree to and hereby do assign to Bang, and we will own, all right, title and interest (including any Intellectual Property Rights) in and to any Suggestion even if the person making the Suggestion has designated the Suggestion as confidential or proprietary. Bang shall be entitled to use and exploit any Suggestion without restriction.
Notice of Alleged Infringement
If you are an intellectual property owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged infringements taking place on or through the Platform by submitting a complete Notice of Alleged Infringement as described below and delivering it to Bang. Upon receipt of the Notice as described below, Bang will take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing content from the Platform.
Provide your mailing address, telephone number, and, if available, email address.
Identify the intellectual property that you claim has been infringed by providing a comprehensive list of the items (works, trademarks, etc.) that you claim have been infringed. If your work is registered with the United States Patent and Trademark Office, United States Copyright Office, or other intellectual property office or jurisdiction, you must include copies of the registration certificates or information sufficient to confirm that such work is in in fact protected.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Platform where such material may be found.
Provide your full legal name and electronically sign and affirm the following statement: "I hereby affirm that I have a good faith belief that the disputed use of the material is not authorized by the owner, its agent, or the law (e.g., as a fair use). I affirm that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the Intellectual Property or of an exclusive right under the Intellectual Property that is allegedly infringed."
Deliver this Notice, with all items completed, to Bang by email to copyright@bangbangforever.com.
Affiliate Marketing; Third Party Websites, Applications, Links, and Resources
The Platform may contain links to or otherwise interface or connect with third party websites or resources, such social media sites, and payment processors. You acknowledge and agree that Bang is not responsible or liable for (i) the availability or accuracy of such websites or resources or (ii) the content, products, or services on or available from such websites or resources.
Mobile Terms Of Service: https://magic-ink.myklpages.com/p/mobile-terms-of-service
AFFILIATE MARKETING DISCLAIMER: In addition, in some instances and from time to time we may provide through the Platform links to certain third-party products and services and those links may be affiliate links. If you click on those links and chose to make a purchase from such a third party, we may in certain instances earn a small commission from that third party. The commission is paid to us by the third party, not from you and you will incur no additional cost.
Links to such websites or resources do not imply any endorsement by Bang of any third-party websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM, OR ANY FEATURE OR SERVICE ACCESSED OR OFFERED ON, BY, OR THROUGH THE PLATFORM REMAINS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BANG NOR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS OR AFFILIATES, SHALL BE LIABLE TO ANY USER, ANY USER, ANY GUESTS OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, FILES, DATA, CONTENT, BUSINESS, OPPORTUNITIES, REVENUES, ANTICIPATED SAVINGS OR OTHERWISE (EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR FOR ANY DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS IN CONNECTION WITH THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SYSTEM OR ANY SERVICE OR ANY PART THEREOF, (II) THE PROVISION OF OR FAILURE TO PROVIDE, OR ANY INTERRUPTION OF, ANY BANG SERVICE OR ANY OTHER SERVICE, (III) ANY INFORMATION, SOFTWARE, PRODUCT, SERVICE, DATA, FILE, CONTENT, OR MATERIALS STORED ON, OBTAINED THROUGH, UPLOADED TO OR DOWNLOADED FROM THE SYSTEM OR ANY SERVICE, OR ANY DAMAGE TO OR CORRUPTION OR LOSS OF ANY OF THE FOREGOING, (IV) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR CONTENT, OR (V) ANY ACCESS TO OR USE OF, OR ANY INABILITY TO ACCESS OR USE ANY CONTENT OR MATERIALS.
IN THE EVENT THAT NOTWITHSTANDING THE PROVISIONS OF THE FOREGOING PARAGRAPHS OF THIS SECTION, WE (OR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES OR THIRD PARTY LICENSORS OR SUPPLIERS) ARE FOUND LIABLE TO ANY USER, USER OR GUEST OR OTHERWISE FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, THE AGGREGATE AMOUNT OF ALL SUCH LIABILITY SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO US BY USER OR YOU (AS APPLICABLE) FOR AND WITH RESPECT TO THE PARTICULAR SERVICES THAT GIVE RISE TO SUCH CLAIM IN WHICH THE CAUSE OF ACTION ACCRUED.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
Indemnification
You agree and must at all times indemnify, defend and hold Bang and its third party suppliers or licensors, each of our and their business partners and each of our and their respective employees, officers, directors, managers and representatives (each an “Indemnitee” and collectively the “Indemnitees”), harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including attorneys’ fees and court costs) suffered or incurred by any of the Indemnitees as a result of any third party claim, action, suit, or proceeding arising out of or incident to (i) any User or other person’s use of or access to the Platform in a manner not authorized by these Terms, or in violation of any applicable laws, (ii) Content including any claim involving infringement or misappropriation of third party rights or the use, development, design, manufacture, production, advertising, promotion or marketing of User Content, (iii) any breach by User or any other person of any term or condition of these Terms, including without limitation, any representation and warranty hereunder, or (iv) any act, omission or misconduct of User or any other person using or accessing the Platform.
We will promptly notify you of any claim which we become aware of and which we believe to be subject to indemnification under this Section; provided that our failure to promptly notify you shall not affect your indemnification obligations hereunder except to the extent that our failure to promptly notify you materially prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim(s) with counsel of your own choosing (subject to a conflicts assessment), and to settle such claim as you deem appropriate, provided that you (nor any Person acting on your behalf) may enter into any settlement without Bang’s prior written consent (which may be conditioned or withheld in our sole and absolute discretion) and provided that we may, at any time, elect to take over control of the defense and settlement of any claim.
Dispute Resolution
Arbitration
You and Bang agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief (and associated legal relief) in a court of competent jurisdiction to redress or prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights. You acknowledge and agree that you and Bang are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding. Further, unless both you and Bang otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding.
Rules and Governing Law
This agreement to arbitrate evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The AAA Rules are available at www.adr.org/Rules. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Location and Procedure
Unless you and Bang otherwise agree, the arbitration will be conducted in New York, New York, United States. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Bang submit to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes
Notwithstanding the provisions of the “Modification” section above, if Bang changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Bang’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Bang in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
General Provisions
Notices
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Bang (i) via email (in each case to the address that you provide) or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms and your use of the Services will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in New York County, New York or a United States District Court, Southern District of New York located in New York County, New York for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights, as set forth in the Dispute Resolution provision.
Severability
If any provision of these Terms, or the application of such provision, is held invalid by a court of competent jurisdiction, the remainder of these Terms, and the application of such provision to persons, entities, or circumstances other than those with respect to which it is held invalid, shall not be affected.
Waiver and Enforceability
The failure of Bang to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
Third Party Beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.
Term and Termination
These Terms are effective upon your access and use of the Platform or of any User Feature, as amended by any modifications made by Bang as outlined at the start of these Terms. You may discontinue your use of User Features at any time, for any reason. We may revoke your permission to access the Platform or any or all User Features, at any time, for any reason, with or without notice to you. We reserve the right to refuse access to the Platform or any User Feature to any User for any reason not prohibited by applicable Law. Either party may terminate the Terms for any reason upon written notice to the other party.
Survival
Sections I (Definitions), II (Acknowledgments and Disclaimers), IX (Intellectual Property and User License Agreement), XI (Limitation of Liability), XII (Indemnification), XIII (Dispute Resolution), and XIV (General Provisions) shall survive termination of these Terms.
Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Bang and you regarding the Platform, any Services rendered via the Platform, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Bang and you regarding the Platform.
Assignment
These Terms are neither assignable, transferrable nor delegable by you whether by operation of Law or otherwise. Any attempt by you to assign, transfer, or delegate any of these Terms, will be null and void and of no effect. Bang may assign, transfer, or delegate these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the respective parties, their successors and permitted assigns.
How to Contact Us
If you have any questions regarding these Terms or our privacy practices, you can contact us at:
Keith McCurdy, LLC
Attn: Matthew Ganser
Address: 62 Grand St, New York, NY, 10013
Telephone: 212 219 2799
Or by email at: Privacy@bangbangforever.com