277 Park Ave End User License Agreement

Date of last revision: May 17, 2021
Reading Time: 14 minutes

This End User License Agreement (this “EULA”) is a binding legal agreement between you and 277 Park Ave, LLC . By downloading, installing, or using this mobile application for Android, iOS or any other mobile platform in which it is made available (the “Software”), you agree to be bound by the terms of this EULA. If you do not agree to this EULA, do not continue to sign-up, therefore agreeing to be bound by this EULA and do not use the Software. You agree that the installation or use of the Software signifies that you have read, understood, and agree to be bound by this EULA.

The Software is provided to you under this EULA solely for your private, non-commercial use. When using the Software or the 277 Park Ave, LLC content, information, membership functionality, 277 Park Ave, LLC platform features or any other services (collectively, the “277 Park Ave, LLC Service”), you will be subject to any additional terms applicable to such services that may be posted from time to time, including, without limitation, the 277 Park Ave, LLC Terms, which incorporates by reference:

 

All such terms are hereby incorporated by reference into this EULA.

Description of Software

The Software is a downloadable software application that enables you to access 277 Park Ave, LLC functionality directly from your Android, iPhone, iPad or other mobile device supported by 277 Park Ave, LLC (each, a “Device”). You may download the Software whether or not you use the 277 Park Ave, LLC Service, but you must associate it with your 277 Park Ave, LLC account to enable its full functionality.

License

Subject to the terms and conditions of this EULA, 277 Park Ave, LLC hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, personal license to:

  • Use the Software for your own personal use;
  • Install the Software on only one Device;

 

For clarity, the foregoing is not intended to prohibit you from installing and backing up the Software for another Device on which you also agreed to this EULA. Each instance of this EULA that you agree to grants you the aforementioned rights in connection with the installation, use and back-up of one copy of the Software on one Device.

Title

Title, ownership and all rights (including, without limitation, all intellectual property rights) in and to the Software and the 277 Park Ave, LLC Service shall remain with 277 Park Ave, LLC . Except for those rights expressly granted in this EULA, no other rights are granted, whether express or implied.

Restrictions

You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.

You will not:

  • Create derivative works based on the Software;
  • Use the Software for any purpose except as described herein;
  • Copy or reproduce the Software except as described herein;
  • Sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to any third parties;
  • Alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, except to the extent this prohibition is not permitted under an applicable law; or
  • Remove or alter any proprietary notices or marks on the Software.

 

If you are under 13 years of age, you are not authorized to use the Software or the 277 Park Ave, LLC Service, with or without registering. In addition, if you are under 18 years old, you may use the Software or 277 Park Ave, LLC Service, with or without registering, only with the approval of your parent or guardian.

Personal Information and Privacy

We may ask you to provide certain information about you during the Software downloading process. All personal information that you provide to us will be governed by the Privacy Policy. If you use the 277 Park Ave, LLC Service, the personal information you provide to 277 Park Ave, LLC will also be governed by the Privacy Policy. You understand and agree that 277 Park Ave, LLC may disclose information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to comply with legal process, enforce the terms of this EULA, or protect the rights, property, or safety of 277 Park Ave, LLC , its users, or the public.

Apple- and Google-Related Terms

277 Park Ave, LLC and you acknowledge that this EULA is concluded between 277 Park Ave, LLC and you only, and not with Apple Inc. or third parties that operate using the Android operating system, which is owned by Google Inc. (collectively, the “Marketplace Provider”), and that as between 277 Park Ave, LLC and the Marketplace Provider, 277 Park Ave, LLC , not the Marketplace Provider, is solely responsible for the Software and the 277 Park Ave, LLC Service.

You may not use the Software in any manner that is in violation of or inconsistent with the usage rules set forth for the Software in, or otherwise be in conflict with, the applicable marketplace terms of service (the “App Store Terms of Service”).

Your license to use the Software is limited to a non-transferable license to use the Software on an iOS product or Android-based product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service. The Marketplace Provider has no obligation whatsoever to provide any maintenance or support services with respect to the Software. If you have any questions, complaints or claims with respect to the Software, they should be directed to the 277 Park Ave, LLC Customer Support at [email protected].

The Marketplace Provider is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Software on an iOS product to conform to any applicable warranty, you may notify Apple Inc., and Apple Inc. will refund the purchase price for such Software to you, if any; and, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever with respect to such Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be 277 Park Ave, LLC ’s sole responsibility, to the extent it cannot be disclaimed under applicable law.

277 Park Ave, LLC and you acknowledge that 277 Park Ave, LLC , not the Marketplace Provider, is responsible for addressing any claims of you or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (a) product liability claims; (b) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.

In the event of any third party claim that the Software or the end-user’s possession and use of the Software infringes that third party’s intellectual property rights, as between 277 Park Ave, LLC and the Marketplace Provider, 277 Park Ave, LLC , not the Marketplace Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

277 Park Ave, LLC and you acknowledge and agree that Apple Inc., and Apple Inc.’s subsidiaries, are third party beneficiaries of this EULA with respect to the Software, and that, upon your acceptance of the terms and conditions of this EULA, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce this EULA against you with respect to the Software as a third party beneficiary thereof.

The Google Play marketplace is owned and operated by Google. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at

http://www.google.com/accounts/TOS

) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, your use of Google Play is subject to the Google Play Business and Program Policies (http://play.google.com/about/androiddeveloper-policies.html). The Google Play Terms of Service, Google Play Business and Program Policies, and Google Terms of Service will take precedence in that order in the event of a conflict between them, to the extent of such conflict.

No Warranty

277 Park Ave, LLC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FULLY COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE SOFTWARE IS OFFERED ON AN “AS-IS” BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. 277 Park Ave, LLC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.

Right to Terminate or Modify Software

277 Park Ave, LLC reserves the right to change or modify portions of this EULA at any time. If 277 Park Ave, LLC does so, 277 Park Ave, LLC will indicate at the top of the page the date this EULA was last revised. 277 Park Ave, LLC will also notify you of any material changes in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the 277 Park Ave, LLC Service or changes made for legal reasons may become effective immediately. Your continued use of the Software after any such changes or modifications become effective constitutes acceptance of such changes or modifications. If you do not agree to abide by these or any future EULA, do not use or access (or continue to use or access) the Software. 277 Park Ave, LLC may terminate your use of the Software, this EULA or the 277 Park Ave, LLC Service at any time, with or without notice.

  1. Government Restricted Rights

The Software and accompanying documentation are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software) or subparagraphs(c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software – Restricted Rights), as applicable.

Open Source

The Software may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found in the Software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.

Indemnification

By accepting this EULA, you agree to indemnify and otherwise hold harmless 277 Park Ave, LLC , its officers, employers, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT 277 Park Ave, LLC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF 277 Park Ave, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL 277 Park Ave, LLC ’S AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT YOU HAVE PAID 277 Park Ave, LLC IN THE LAST SIX (6) MONTHS OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Export Restrictions

This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the export from the United States of America of the Software or information about such Software which may be imposed from time to time by the government of the United States of America. You shall not export the Software or information about the Software without consent of 277 Park Ave, LLC and compliance with such laws, regulations, orders or other restrictions. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

Class Action Waiver

Any proceedings to resolve or litigate any dispute in any forum with respect to this EULA and/or the 277 Park Ave, LLC Service will be conducted solely on an individual basis. Neither you nor 277 Park Ave, LLC will seek to have any such dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then this section will not apply to those parts.

General

This EULA constitutes the entire agreement between you and 277 Park Ave, LLC and governs your use of the Software on one Device, superseding any prior agreements between you and 277 Park Ave, LLC with respect to the Software on such Device. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. This EULA will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. You and 277 Park Ave, LLC agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Boston, Massachusetts. The failure of 277 Park Ave, LLC to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. If any provision of this EULA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this EULA remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the 277 Park Ave, LLC Service or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this EULA without the prior written consent of 277 Park Ave, LLC , but 277 Park Ave, LLC may assign or transfer this EULA, in whole or in part, without restriction. The section titles in this EULA are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail.

 

277 PARK AVENUE AMENITIES AND WELLNESS CENTER FACILITIES & SERVICES TENANT USE AND WAIVER AGREEMENT

This agreement governs the terms of your use of the 277 Park Avenue Amenities & Wellness Center (the “Amenities Center”) as an employee of a current tenant of 277 Park Avenue.

  1. The Amenities Center offers the following facilities for use by employees of current tenants of 277 Park Avenue: *Board Room, *Conference Room, *Video Conference Room, *Multi-Purpose Room/Half Basketball Court, *Nap Pods, Day Lockers, Hybrid Saunas and Steam Rooms, and lounge and seating area. In addition, the Amenities Center offers employees of current tenants of 277 Park Avenue health and wellness services such as acupuncture, chiropractic manual medicine, massage therapy, physical therapy and nutrition. Rental fees apply for certain facilities marked with an “*” and fees apply with regard to all listed services.
  2. MAIN WORKOUT AREA (cardio and weight equipment). Only employees of current tenants of 277 Park Avenue are entitled to use the Main Workout Area during operating hours. Eligibility to use the Main Workout Area ends when employment ends. No outside guests or visitors will be permitted unless expressly authorized by management in its sole discretion.
  3. RULES, POLICIES, AND PROCEDURES: All users of the Amenities Center shall abide by all rules, policies, and procedures of the Amenities Center, written and verbal, which may be modified from time to time by management, in its sole discretion.
  4. REGISTRATION: Use of the Amenities Center facilities for the first time requires registration in advance of a user’s first visit to the Amenities Center via the 277 Park Avenue App. All users should check in at the front desk. Users will be able to access the Amenities Center via the 277 Park Avenue App with mobile access.
  5. DAY LOCKERS: Lockers are provided solely for the benefit and convenience of the user and are for daily use only, unless the user has paid for a permanent locker. Personal items left in day lockers overnight will be removed and, at the discretion of management, discarded if not claimed within 48 hours. Users should avoid bringing valuable items to the Amenities Center. The Amenities Center Parties (defined in paragraph 10 below) are not responsible for lost or stolen items, regardless of whether such items are stored or contained in a locker.
  6. GROUP FITNESS CLASSES, PERSONAL TRAINERS AND OTHER THIRD-PARTY SERVICE PROVIDERS: Group fitness classes, personal fitness trainers, acupuncture, massage or physical therapy and/or nutrition advice may be available at the Amenities Center at certain times. Applicable fees will be established and charged by the class instructor or service provider. The Amenities Center Parties do not make any representation or guarantee as to the quality or results of any such classes or services and do not guarantee that such classes or services will remain available at or for any particular period of time.
  7. MEDICAL DISCLAIMER: User understands that the Amenities Center Parties do not make any representation as to treatment of any medical condition, nor do they make any guarantee as to the results of the use of the Amenities Center’s facilities.
  8. RIGHT TO REVOKE OR RESTRICT ACCESS: The Amenities Center Parties reserve the right to revoke, restrict and/or prohibit access and/or use to any user for breach of any provision of this agreement, violation of any Amenities Center rule or policy, or for generally undesirable behavior, as determined by management in its sole discretion.
  9. HEALTH DISCLAIMER: User understands they should consult with a physician before beginning any fitness or diet regimen or treatment. User represents that they have no disability, impairment or ailment that, according to their healthcare provider, prevents them from safely engaging in any physical or athletic activity that they intend to engage in at the Amenities Center. If you experience any pain or difficulty with any exercises or treatment, stop and consult your healthcare provider.
  10. ASSUMPTION OF RISK AND RELEASE OF LIABILITY: User understands that the use of the Amenities Center involves inherent risks of injury. User expressly assumes the risk(s) of any and all injuries and accidents of any kind sustained in connection with the use of the Amenities Center and hereby releases and holds harmless the Amenities Center, 277 Athletic Club LLC, Manhattan Athletic Club LLC, 277 Park Avenue, LLC, Cushman and Wakefield US Inc. and their respective affiliates, shareholders, partners, subsidiaries and related entities, and any successors and assigns of such entities, and their officers, employees and agents, their respective successors and assigns, and their respective insurers (collectively, the “Amenities Center Parties”) from and against all claims, damages, losses and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of, resulting from or relating to any use of, or any activity undertaken by them at or upon the Amenities Center premises.

  11. INDEMNIFICATION: To the fullest extent permitted by law, user shall defend, indemnify and hold harmless the Amenities Center Parties from and against all claims, damages, losses and expenses, including but not limited to reasonable attorneys’ fees, arising out of, resulting from or relating to any use of, or any activity undertaken by user at or upon the Amenities Center premises including, but not limited to claims, damages, losses and expenses attributable to bodily injury, sickness, disease or death, or to damage to or destruction of tangible property, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. This obligation shall survive the termination or earlier expiration of this agreement.

    User shall indemnify and hold harmless the Amenities Center Parties from, against and for any costs and expenses (including reasonable attorneys’ fees) incurred by any of the Amenities Center Parties in enforcing any of the defense, indemnity, and hold harmless obligations hereunder and, at the option of the Amenities Center Parties, user shall assume the defense of any or all of the Amenities Center Parties in any claim arising out of, resulting from 3 or relating to any use of, or any activity undertaken by user at or upon the Amenities Center premises.

  12. COMPLAINT PROCEDURE: If you believe that you may have been–or anyone else may have been–unlawfully discriminated against, harassed by or retaliated against or subject to any unacceptable conduct (even if not unlawful), by any manager, employee, or non-employee, we strongly encourage you to report your concerns immediately to the General Manager. You should not report any existing or potential violations to any person who you believe is involved in the matters giving rise to the violation or potential violation.

    Similarly, if you have any question as to whether certain conduct is unlawful discrimination, retaliation or harassment or other unacceptable conduct prohibited by the Amenities Center, or whether an accommodation may be needed or possible, you are encouraged to speak with the General Manager.

    In all cases, your complaints will be investigated promptly, thoroughly and impartially, ensuring due process for all parties. Further, the existence and nature of your complaint, as well as the identity of any complainant, witness or accused, will be disclosed by the Amenities Center only to the extent necessary to make a prompt, impartial and thorough investigation or as may be necessary to take appropriate corrective measures.

    The Amenities Center will neither engage in nor tolerate any form of unlawful retaliation.

    All users—whether complainant, accused or witness—are expected to cooperate fully and honestly in any investigation of a violation of the Amenities Center’s policies.

  13. ENTIRE AGREEMENT: This constitutes the entire agreement between the parties with regard to the subject matter set forth herein and no other agreements exist, oral or written, with respect to the subject matter of this agreement, except as set forth herein. Any amendment or modification of this agreement shall only be effective if it is set forth in a writing executed by the parties. Employees of the Amenities Center are not authorized to make any independent agreement with any user, except with the written approval of the General Manager.

CONSENT TO TERMS: EVERY TENANT BY ACCEPTANCE OF THE MASTER TERMS AND CONDITIONS AND 277 PARK AVENUE AMENITIES & WELLNESS CENTER FACILITIES & SERVICES TENANT USE AND WAIVER AGREEMENT SHALL BE DEEMED TO HAVE CONSENTED TO BE BOUND, ON HIS OR HER OWN BEHALF AND ON BEHALF AND ON BEHALF OF HIS OR HER HEIRS, ASSIGNS, AND LEGAL REPRESENTATIVES, BY ALL OF THE TERMS AND CONDITIONS OF BOTH AGREEMENTS WHICH GOVERN THE TERMS OF TENANT USE OF THE PROPERTIES.