Last Updated: May 28, 2015
We reserve the right, with or without cause, to modify these Terms at any time and without prior notice. Any changes we make will be effective immediately upon our making such changes available on the Website. We will also indicate at the top of this page the date that changes were last made. You understand and agree that your continued access to or use of the Website after such changes constitutes your acceptance of the modifications.
Certain areas of the Website, and certain features of the Website, may have different terms and conditions posted, or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions governing for a specific area of the Website, the latter terms and conditions will take precedence with respect to your use of or access to that specific area of the Website.
The Website is intended solely for persons who are 18 or older. Any access to or use of the Website by anyone under 18 is expressly prohibited. By accessing or using the Website you represent and warrant that you are 18 or older.
The Website is an Online Intermediary and We are Not a Party to Any Transactions or Rental Agreements
BirthdayMasters acts as an online intermediary to allow vendors and service providers ("Providers", "Provider") who advertise on the Website to offer their venues, services, spaces, activities, packages, products, and rentals ("Activities", "Activity") to potential customers ("Buyers") and enter into agreements. We do not own or manage, nor can we contract for, any Activity listed on the Website. We do not set the Activity prices nor do we determine Activity availability.
It is important to remember that BirthdayMasters acts as a facilitator and is not a party to any service, rental or any other agreement entered into between users and Providers. This is true even if the Website allows you to book an Activity or provides other ancillary products or services, as the Website may facilitate bookings or other tools, services or products, but we are not a party to any transaction or agreement between users. Payments for Activities booked through the Website will be remitted to the Provider, and shall be considered the same as a payment made directly by you to the Provider.
As a result, we have no control over and do not guarantee the quality, suitability, reliability, timing, durability, safety, morality, legality or any other aspect whatsoever of the transactions that take place on the Website. We have no control over the truth, quality, safety, legality or accuracy of any aspect of the Providers' listings or any claims made Providers about the Activities they offer, the ability of Providers to sell, deliver or operate Activities, or ability of Buyers to pay for the Activities and our liability for any damages resulting from the Activities is limited. We cannot ensure that a Buyer or Provider will actually complete a transaction.
You acknowledge and agree that you may be required to enter into one or more separate agreements, waivers or terms and conditions with the Provider prior to making a booking or purchasing an Activity, product or service. You and members of your group are responsible for complying with these separate agreements, waivers, terms and conditions. Please read them carefully.
Bookings and Financial Terms
We provide booking services (the "Booking Services") to our users to reserve and pay for Activities. Before making a booking request for an Activity, please review all relevant descriptions and terms for that Activity. The description and terms may include without limitation a general description; a description of what is included in the purchase price; whether a non-refundable deposit is required for the Activity; the Activity location, start time and duration of the Activity; specific policies you must agree to when purchasing that particular Activity; and need to know information. All prices are stated in U.S. Dollars.
In connection with your booking request, you will be asked to provide your billing information, including, without limitation, your name, billing address and credit card information either to BirthdayMasters or its third party payment processor. You agree to pay BirthdayMasters for any confirmed bookings made in connection with your booking request. You hereby authorize the collection of such amounts by charging the credit card provided as part of requesting the booking, either directly by BirthdayMasters or indirectly, via a third party online payment processor or by one of the payment methods described on the Website. You shall not hold us liable for any losses you suffer as a result of using such third party services.
The total or estimated amount due will be displayed to you before you complete the booking. The estimated amount, if displayed, will be based on selection made at the time of booking. Any changes or additions made after completing the booking may change the amount due on or before the scheduled day of the Activity, depending on the policies of the applicable Provider. You will be responsible to pay all amounts due, on time, and on schedule, as specified on the booking page.
Certain Providers may require non-refundable deposit at the time of booking to hold a reservation for the Activity for the specified date and time with final payment is due before or on the day of the event, depending on the policies of the applicable Provider.
Once your confirmed booking transaction is complete you will receive a confirmation email summarizing your confirmed booking. After your booking is confirmed you will not be able to make any changes to the reservation via the Website. You will need to contact the applicable Provider directly. Please note that change and cancellation procedures and penalties for bookings vary, depending on the policies of the applicable Provider and Activity. You understand and agree that BirthdayMasters has no responsibility or liability for cancellation procedures or penalties. We are not obligated to issue you a refund or an exchange for any cancelled bookings. We are not a party to any payment transaction between you and any Providers, even if we receive a commission in connection with any booking or payment transaction.
Limited License to Use the Website
Subject to your compliance with these Terms, users are granted a limited, non-transferable, revocable, non-exclusive license to access and view the Website and its contents solely for personal use only and not for any for-profit or commercial activities or purpose or for resale, except as explicitly permitted by us in advance.
Unauthorized Uses of the Website
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sublicense, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Website, whether in whole or in part, or any content displayed on the Website; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Website; (c) you shall not manipulate or otherwise display the Website by using framing or similar technology; (d) you shall not use any data mining, robots, scrapers or similar data gathering or extraction methods; (e) you shall not attempt to gain unauthorized access to the Website, accounts, its related systems or networks through hacking, password mining or any other means; (f) you shall not access the Website if we have previously banned you from the Website or closed your account; (g) you shall not use any information obtained from the Website in order to send spam, harass, abuse, impersonate or harm another person, or in order to contact, advertise to, solicit or sell any product or service (including, without limitation, any Activity) to any user of the Website without their prior explicit written consent; (h) you shall not access the Website in order to build a similar or competitive website, product, or service; and (i) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Website shall be subject to these Terms. All copyright and other proprietary notices on the Website (or on any content displayed on the Website) must be retained on all copies thereof.
Any use of the Website that is not for one of these purposes or otherwise in accordance with the Terms or as otherwise authorized by us in writing is expressly prohibited.
Ownership, Copyright and Trademark
Except as otherwise indicated, you acknowledge that the Website, its content (including the User Content, defined below) and information on the Website, all the intellectual property rights, including copyrights, patents, trademarks, or other intellectual properties depicted in any designs, text, graphics, logos, buttons, icons, images, information, photographs, sound clips, video clips on the Website are owned by BirthdayMasters or its suppliers or licensors and are protected by U.S. and international copyright, trademark and other laws. In addition, the look and feel of the Website, including scripts contained on the Website is owned, controlled or licensed by or to BirthdayMasters, and is protected by service mark, trademark, trade dress, and various other intellectual property rights and unfair competition laws. No part of the Website may be copied, reproduced, imitated or used, in whole or in part, without the prior written permission from BirthdayMasters.
BirthdayMasters has adopted and implemented the following Copyright Policy in accordance with the Digital Millennium Copyright Act of 1998 ("DMCA").
It is our policy to respond to alleged infringement notices that comply with the DMCA. In accordance with the DMCA and other applicable laws, we have adopted a policy of, upon notice, restricting access to or deleting content that infringes a third party's copyright and, in appropriate circumstances and in our sole discretion, terminating account holders or other users of the Services who are deemed to be repeat infringers of a third party's copyrighted work.
If you believe that anything on the Services infringes any copyright that you own or control, you may file a notice of such infringement, in compliance with the requirements of 17 U.S.C. § 512(c)(3), with our designated agent:
Attn: Copyright Agent
340 S Lemon Ave #2105
Walnut, CA 91789
As part of your use of the Website, you have the opportunity to submit material to us by email or post on the Website for other users to review and use, retaining your own backup copies of such content if you desire. Your participation is voluntary; however, please be aware that by submitting this material and postings, which could be listings, questions, comments, messages, text, photos, audio/visual works, information, suggestions, feedback, ideas, reviews or content provided by you (collectively, "User Content"), you grant (and you represent and warrant that you have the right to grant) to BirthdayMasters an irrevocable, perpetual, non-exclusive, transferable, sublicensable, royalty-free and fully paid, worldwide license to reproduce, adapt, modify, re-format, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit in any manner, any and all of your User Content, and to grant sublicenses of the foregoing rights, for any purpose. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You acknowledge and agree that your User Content may be viewed by the general public and will not be treated as private, proprietary or confidential.
You are solely responsible for your User Content that you make available through the Website, and once published, it cannot always be withdrawn. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that you either are the sole and exclusive owner of your User Content or you have all rights, licenses, consents and releases that are necessary to grant to BirthdayMasters the rights to use your User Content as described in these Terms. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by BirthdayMasters.
BirthdayMasters expressly disclaims any and all liability in connection with any User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading; misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Your communications and interactions with other users are solely between you and such users. You agree that BirthdayMasters will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Website user, we are under no obligation to become involved.
You acknowledge that BirthdayMasters reserves the right to use, remove, publish, edit or modify any User Content submitted, stored or posted on the Website without any notice, at any time and for any reason. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
In order to be a Provider and use certain features of the Website, you will be required to register for an account ("Account") with BirthdayMasters and provide and maintain true, accurate, current and complete information about yourself as prompted by the Website registration process. We reserve the right to reject your application and we have no obligation to disclose the reason for our decision. We may limit, suspend, deactivate or terminate your Account at any time and for any reason and without liability to you, including, but not limited to, for violation of these Terms.
If you open an account on behalf of a company, organization, or other entity, then you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity's behalf. You are solely responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account, with or without your permission. You agree to immediately notify BirthdayMasters of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. We cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Further, we may, without notice to you, suspend or cancel your listing at any time even without receiving notice from you if we suspect, in our sole discretion, that your Account is being used in an unauthorized or fraudulent manner.
The communications between you and BirthdayMasters are made via electronic means, whether you use the Website or send us emails, or whether BirthdayMasters posts notices on the Website or communicates with you via email. For contractual purposes, you (a) consent to receive communications from BirthdayMasters in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that BirthdayMasters provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
Availability of the Website
The Website may be modified, updated, interrupted, suspended or discontinued for any reason, without notice at any time. We reserve the right to refuse service to anyone for any reason at any time. We also reserve the right to suspend or restrict access to some features to users. You agree that BirthdayMasters will not be liable if for any data loss or Website unavailability.
If you provide BirthdayMasters with any feedback or suggestions regarding the Website ("Feedback"), you hereby assign to BirthdayMasters all rights in such Feedback and agree that BirthdayMasters shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. BirthdayMasters will treat any Feedback you provide to BirthdayMasters as non-confidential and non-proprietary. You agree that you will not submit to BirthdayMasters any information or ideas that you consider to be confidential or proprietary.
You agree to fully indemnify, defend and hold BirthdayMasters (and its officers, directors, employees, suppliers, and agents) harmless, including, without limitation, losses, actions, costs, damages, penalties, fines and expenses (including attorney's fees) or demand made by any third party due to or arising directly or indirectly out of (a) your access to or use of the Website; (b) your breach or violation of any of these Terms; (c) your interaction with other users; (d) your booking of an Activity; (e) you creating of a listing; (f) your violation of rights of any third party; (g) your violation of applicable laws or regulations; or (h) your User Content. We reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
The Website contains hyperlinks and pointers to third-party websites. Such third-party websites are not under the control of BirthdayMasters, and we are not responsible for their contents or the privacy or other practices of such websites. We provide access to these third-party websites only as a convenience to you, and do not review, approve, monitor, endorse, warrant, or make any representations with respect to other websites. You use all third-party links at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the third-party links, the applicable third party's terms and policies apply, including the third party's privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such third-party links.
You hereby release and forever discharge BirthdayMasters (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Website (including any interactions with, or act or omission of, other website users or any third-party links).
BECAUSE BIRTHDAYMASTERS IS NOT INVOLVED IN TRANSACTIONS BETWEEN USERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF YOU RELEASE BIRTHDAYMASTERS (AND THEIR RESPECTIVE AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." IF YOU ARE A RESIDENT OF ANY OTHER STATE OR FOREIGN COUNTRY, YOU AGREE TO WAIVE IN ADVANCE ANY SIMILAR LAWS OF SUCH OTHER JURISDICTION.
You acknowledge that BirthdayMasters is not in any way liable for any injury that you or anyone in your party may suffer while participating in any Activity. You specifically acknowledge that there may be inherent hazards and risks associated with your participation in the Activity including, but not limited to: (a) risk of injury from the activity and/or equipment, including the failure of any equipment and the potential for permanent disability and death; (b) possible equipment failure and/or malfunction of your own or others' equipment; (c) your own negligence and/or the negligence of others, including but not limited to supervisor error and instructor decision making; (d) running into objects, persons or animals; and (e) attack by or encounter with insects, reptiles, and/or animals. BirthdayMasters is not a party to any transactions or agreements, you hereby release and hold harmless BirthdayMasters, its officers, directors, employees, affiliates, subsidiaries, and assigns, with respect to any and all injury, disability, death, or loss or damage to person or property, whether caused by negligence or otherwise.
IF YOU CHOOSE TO USE THE WEBSITE YOU DO SO AT YOUR SOLE RISK. THE INFORMATION, ACTIVITIES, PRODUCTS, AND SERVICES PUBLISHED ON THE WEBSITE MAY INCLUDE INACCURACIES OR ERRORS, INCLUDING ACTIVITIES AND PRODUCT AVAILABILITY AND PRICING ERRORS. THE WEBSITE AND CONTENT ON THE WEBSITE ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND BIRTHDAYMASTERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. BIRTHDAYMASTERS MAKE NO WARRANTY THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. BIRTHDAYMASTERS MAKES NO REPRESENTATION, WARRANTY OR GUARANTY REGARDING THE QUALITY OR ACCURACY OF ANY LISTINGS, ACTIVITIES, USER CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, SAFETY OR RELIABILITY OF ANY ACTIVITIES, SERVICES, PRODUCTS OR GOODS OBTAINED THROUGH THE WEBSITE. BIRTHDAYMASTERS DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY USERS, THIRD PARTY USERS, PROVIDERS, ADVERTISERS AND/OR SPONSORS ON THE WEBSITE. BIRTHDAYMASTERS IS NOT RESPONSIBLE FOR THE PRODUCTS, SERVICES, ACTIONS OR FAILURE TO ACT OF ANY PROVIDER, VENUE, PERFORMER, PROMOTER OR OTHER THIRD PARTY IN CONNECTION WITH OR REFERENCED ON THE WEBSITE. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE WEBSITE, AND ANY PROVIDERS, SERVICES OR PRODUCTS, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN ADDITION, WE EXPRESSLY RESERVE THE RIGHT TO CORRECT ANY AVAILABILITY AND PRICING ERRORS ON THE WEBSITE AND/OR ON RESERVATIONS MADE UNDER AN INCORRECT PRICE. IN SUCH EVENT, WE WILL OFFER YOU THE OPPORTUNITY TO KEEP YOUR RESERVATION AT THE CORRECT PRICE OR WE WILL CANCEL YOUR RESERVATION WITHOUT PENALTY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BIRTHDAYMASTERS OR THROUGH THE WEBSITE OR ITS CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIRTHDAYMASTERS (TOGETHER WITH OUR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND PROVIDERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR LOSS OF DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE WEBSITE, SERVICES, OR ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY PROVIDER, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THIS WEBSITE, ITS CONTENT, SERVICES, OR ANY LINKED WEBSITE IS TO STOP USING THE WEBSITE, SERVICE, OR LINKED WEBSITE, AS APPLICABLE. BIRTHDAYMASTERS (TOGETHER WITH OUR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND PROVIDERS) DISCLAIMS ANY AND ALL LIABILITY FOR ANY DAMAGES, EXPENSES OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF (1) ANY INACCURACY, INCOMPLETENESS OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS OR SUBMISSIONS PROVIDED OR POSTED ON THE WEBSITE BY THIRD PARTIES OR (2) YOUR HIRING OR ENGAGEMENT OF, OR ASSOCIATION WITH, ANY THIRD PARTY ADVERTISING OR OFFERING PRODUCTS OR SERVICES THROUGH THE WEBSITE. IN NO EVENT SHALL BIRTHDAYMASTERS' TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES OR THE WEBSITE FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIFTY U.S. DOLLARS (US $50).
Notice for California Users
Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
Controlling Law and Jurisdiction
These Terms are governed by and shall be construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles.
The failure of BirthdayMasters 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 and signed by a duly authorized representative of BirthdayMasters. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. 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.
If you have any questions about these Terms, please contact us at email@example.com.