NEW YORK BY NEW YORK
MEMBERSHIP AGREEMENT
Last Modified: October 6, 2016
This Membership Agreement (this “Agreement”), entered into between New York Media LLC, doing business in the State of New York as New York Media (DE) LLC (“New York Media”), and you (“you” or “your”), governs your membership in NEW YORK BY NEW YORK (your “Membership”). New York Media’s Terms of Use and Privacy Policy are incorporated into this Agreement by reference (except to the extent they conflict with this Agreement, in which case the terms of this Agreement will govern, but solely with respect to NEW YORK BY NEW YORK and your Membership). If you agree to be bound by the terms of this Agreement, please check the box on the Membership Activation Page indicating that you so agree. If you do not agree to be bound by the terms of this Agreement, then you should not check the box, in which case you will not be bound and will not be able to activate your Membership.
1. Membership Benefits. As part of your Membership, you will be eligible to receive certain benefits (“Membership Benefits”), which may include experiences, dining and restaurant offers (such as chef’s tables and openings), discounts on the purchase of products and services, invitations to events hosted by New York magazine, and access to a private Instagram feed that will feature tips from New York magazine’s editors on New York City living. You acknowledge and understand that Membership Benefits, particularly those provided through a merchant or partner of New York Media (each, an “NYM Partner”), may be limited in quantity and that you will not be able to receive all of the Membership Benefits that are offered by NEW YORK BY NEW YORK. You also acknowledge and agree that Membership Benefits, particularly those provided through an NYM Partner, may be subject to change or cancellation at any time with or without notice to you. Additional terms and conditions may apply to Membership Benefits provided through an NYM Partner. New York Media does not endorse or warrant its NYM Partners or any products or services that any of them may provide, either as part of NEW YORK BY NEW YORK or otherwise. New York Media will not be liable for any loss or damage that you may incur as a result of any agreement or other interaction between you and an NYM Partner.
2. Membership Term. The Membership Activation Page provides for two types of Membership – monthly and annual. You will indicate the type of Membership you wish to purchase on the Membership Activation Page. Except where prohibited by applicable law, unless your Membership is timely canceled in accordance with Section 4, the term of your Membership will automatically renew, so that monthly Memberships will automatically renew for additional, consecutive monthly periods, and annual Memberships will automatically renew for additional, consecutive one-year periods. To the extent required by applicable law, New York Media will send you a reminder notice of each renewal of your Membership term. If such a notice is not required by applicable law, New York Media may still, as a courtesy, send you a reminder notice of each renewal of your Membership term; however, your Membership will automatically renew even if New York Media fails to send you such a notice.
3. Membership Fee.
3.1 You will indicate the means by which you wish to pay the fee for your Membership on the Membership Activation Page (the “Membership Fee”). New York Media accepts payment by certain types of credit card and debit card, as well as by PayPal.
3.2 The Membership Fee for a monthly Membership is $9.99 per month. If you elect to purchase a monthly Membership, the Membership Fee will be billed to your credit/debit card or PayPal account (as applicable) at the commencement of your Membership and each subsequent monthly period.
3.3 The Membership Fee for an annual Membership is $99.00 per year. If you elect to purchase a monthly Membership, the Membership Fee will be billed to your credit/debit card or PayPal account (as applicable) at the commencement of your Membership and each subsequent twelve-month period. In addition to the Membership Benefits, purchasers of an annual Membership will receive a limited edition tote bag.
3.4 New York Media reserves the right to change the amount of the Membership Fee at any time, with or without notice to you, but the change will not apply to you until the next renewal of your Membership Term. If at any time during your Membership Term you would like to change or update your credit/debit card information or PayPal information, you may do so by contacting Customer Service at nyxny@nymag.com. If your credit/debit card or PayPal account cannot be charged, New York Media will bill you directly instead. The Membership Fee will be subject to taxation in accordance with applicable federal or state law.
4. Cancellation of Membership.
4.1 By You. You have the right to cancel your Membership at any time by contacting Customer Service at nyxny@nymag.com.
4.2 By New York Media. Notwithstanding anything to the contrary in this Agreement, New York Media reserves the right to cancel your Membership at any time, for any reason or no reason, with or without notice to you. Reasons for cancelling could include your failure to conduct yourself in a safe and appropriate manner at NEW YORK BY NEW YORK events, and your failure to make payments of the Membership Fee in accordance with this Agreement. New York Media also reserves the right to terminate NEW YORK BY NEW YORK at any time, for any reason or no reason, immediately upon notice to you, in which case your Membership will automatically be cancelled.
4.3 Effect of Cancellation. In the event of cancellation of your Membership, including by New York Media as a result of its termination of NEW YORK BY NEW YORK, you will stop being billed for the Membership Fee, but you will not be refunded any portion of your Membership Fee. Notwithstanding that, if you purchased an annual Membership and that Membership is cancelled by New York Media as a result of its termination of NEW YORK BY NEW YORK, you will be entitled to receive a ratable refund of your Membership Fee, calculated by multiplying the amount of your Membership Fee by a fraction, the numerator of which is the number of days remaining in your Membership term on the effective date of termination and the denominator of which is the total number of days in your annual Membership term. This Section 4.3 sets forth your sole rights and remedies for the cancellation of your Membership.
5. Disclaimers. USE OF NEW YORK BY NEW YORK AND ANY OF ITS MEMBERSHIP BENEFITS IS AT YOUR SOLE RISK. MEMBERSHIP BENEFITS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEW YORK MEDIA AND ALL OF ITS NYM PARTNERS, AND EACH OF THEIR RESPECTIVE PARENTS, AFFILIATES, SUBSIDIARIES, MEMBERS, OFFICERS, EMPLOYEES AND AGENTS (COLLECTIVELY, “NYM PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO NEW YORK BY NEW YORK AND THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE NYM PARTIES MAKE NO WARRANTY THAT NEW YORK BY NEW YORK AND MEMBERSHIP BENEFITS (INCLUDING ANY PRODUCTS, SERVICES, CONTENT AND OTHER MATERIALS PROVIDED TO YOU IN CONNECTION WITH NEW YORK BY NEW YORK) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR WILL OTHERWISE MEET YOUR REQUIREMENTS OR EXPECTATIONS.
6. Indemnification. You shall indemnify, defend and hold harmless the NYM Parties from and against any liabilities, losses, damages, expenses, costs or judgments, including reasonable attorneys’ fees, incurred as a result of any demand, action, suit or similar proceeding, claim or arbitration arising out of or attributable to: (a) your conduct at any events or experiences that you attend in connection with NEW YORK BY NEW YORK, including any negligence or willful misconduct causing personal injury or damage to property; and/or (b) your breach or alleged breach of any of the provisions, representations or warranties set forth in this Agreement. New York Media reserves the right to take over the exclusive defense of any claim for which any of the NYM Parties is entitled to indemnification under this Section 6.
7. Limitations of Liability; Exclusive Remedy.
7.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY OF THE NYM PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR NEW YORK BY NEW YORK, EVEN IF ANY OF THE NYM PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF WHETHER THE CLAIM FOR RECOVERY IS BASED ON CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, INCLUDING DAMAGES RESULTING FROM (i) THE USE OR INABILITY TO USE NEW YORK BY NEW YORK OR ANY MEMBERSHIP BENEFITS, (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY PRODUCTS, SERVICES, CONTENT AND OTHER MATERIAL PURCHASED BY YOU IN CONNECTION WITH NEW YORK BY NEW YORK), OR (iii) UNAUTHORIZED ACCESS TO OR USE OF YOUR NEW YORK BY NEW YORK ACCOUNT.
7.2 Maximum Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE NYM PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE MEMBERSHIP FEE PAID BY YOU DURING THE CALENDAR YEAR IN WHICH THE CAUSE OF ACTION AROSE, IRRESPECTIVE OF WHETHER ANY OF THE NYM PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER THE CLAIM FOR RECOVERY IS BASED ON CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY.
7.3 Exclusive Remedy. THIS SECTION 7 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE NYM PARTIES FOR ANY DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH NEW YORK BY NEW YORK.
8. General.
8.1 Notice. Any notice to you under this Agreement shall be provided by e-mail to the e-mail address that you provide to New York Media when you activate your Membership or that you later provide to New York Media in writing.
8.2 Entire Agreement. This Agreement constitutes the sole and entire agreement between you and New York Media with respect to NEW YORK BY NEW YORK and your Membership therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to NEW YORK BY NEW YORK and your Membership and all other matters contained herein.
8.3 Governing Law, Jurisdiction and Class Action Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules. Any dispute arising out of or relating to this Agreement or NEW YORK BY NEW YORK will be subject to the exclusive jurisdiction of the courts located within NEW YORK County, New York, and you hereby submit to the personal jurisdiction of such courts and agree that venue is proper therein. To the fullest extent permitted by applicable law, no claim under this Agreement may be joined to any other claim and no class action proceedings will be permitted.
8.4 Changes. New York Media may change the terms of this Agreement at any time without notice or liability by posting a revised Agreement on http://promo.nymag.com/nyxny/terms/. Any change shall take effect immediately, unless otherwise provided. You may view the current version of this Agreement at any time online at http://promo.nymag.com/nyxny/terms/. You may also obtain a copy by contacting Customer Service at nyxny@nymag.com.
8.5 Miscellaneous. The headings in this Agreement are for convenience of reference only and shall have no legal effect. All uses in this Agreement of the word “including” or “include” will be deemed to be “without limitation.” The waiver by New York Media of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions of this Agreement shall remain in full force and effect.