Terms and conditions

TERMS OF SERVICE AND BOOKING TERMS

Effective Date: 20 May 2024

Please read these Terms of Service (the “Terms”) carefully. The Terms will govern your use of the Site (as defined below) and any reservation you make to stay with us. By using the Site, making a reservation with us and/or ordering any other goods or services (as applicable), you agree to these Terms.

THESE TERMS CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. PLEASE SEE SECTION 20 TO READ AND REVIEW THE ENTIRE SECTION LABELED “ARBITRATION AGREEMENT” BELOW. BY USING THE SITE OR MAKING A TRANSACTION AND ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE ARBITRATION AGREEMENT. PLEASE READ IT CAREFULLY.

These Terms are between you and AJMC LLC in connection with Memoir Residential (“Company”, “we”, “us” or “our”) and apply to any reservation you make with us and your use of (including any access to) the Memoir Residential website currently located at memoirresidential.com (together with any materials and services available on memoirresidential.com, the “Site”). AJMC LLC is a Delaware limited liability company, with registered number 6012839. Our business address is 429 Chestnut Street, Nashville, TN 37203.

1. ELIGIBILITY

The Site is available only to individuals and entities that can form legally binding contracts under applicable law. The Site and the Products (as defined below) offered by the Site are not available to minors. If you are not eligible to use the Site under this or any other section of these Terms, you may not use the Site, make a reservation with us, or order any other Product (as defined below). By doing so, you confirm that you are eighteen (18) years of age or older.

You also confirm that you are legally authorized to make any Transaction (as defined below), including in respect of any reservation, for either yourself or for another person for whom you are authorized to act. You may only use this Site to make legitimate Transactions (as defined below) and shall not use this Site for any other purposes, including without limitation, to make any speculative, false, or fraudulent reservations, or any reservation in anticipation of demand.

We reserve the right to cancel or modify any Transaction (as defined below), including in respect of any reservation, where it appears that a customer has engaged in fraudulent or inappropriate activity or under other circumstances where it appears that the Transaction (as defined below) contains or resulted from a mistake or error, or from an attempt to circumvent our policies, terms, or conditions.

You understand that overuse or abuse of the reservation facilities of this Site may result in you being denied access to such facilities. Some rates have special eligibility requirements. It is your responsibility to verify that you qualify for the rate that you have booked. We are not obligated to honor rates if you do not qualify.

Any use of the Site is at your own risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.

2. TRANSACTIONS

We may advertise "Products" (being, collectively, our goods (i.e., physical things you can move) or services or related coupons or discounts, including any reservations at our properties) that are available to order or book through the Site, when you visit us, or which we may inform you about when you call us. When you order any Product (each, a “Transaction”), our contract with you will be formed according to the following process.

2.1 PLACING YOUR ORDER

We will advise you of the cost of your Transaction at the time at which you place your order, including any applicable booking fees. You agree to pay all charges incurred by you or on your behalf at the prices in effect when such charges are incurred, including all shipping and handling charges. You are responsible for any taxes applicable to your Transactions. Where relevant, we will inform you of any shipping costs and an estimation of the relevant delivery date at the time of your order.

If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address, and (where relevant) your shipping information. You confirm that you have the right to use any payment card that you submit in connection with a Transaction. By submitting, information to us, you grant us the right to provide the information to third parties for purposes of facilitating Transactions, such as to process your payment. Verification of information may be required prior to the acknowledgment, acceptance, or completion of any Transaction.

By making a Transaction, you confirm that the applicable Products will be used only in a lawful manner.

2.2 HOW WE WILL ACCEPT YOUR ORDER

Where you make a Transaction, our acceptance of the Transaction will take place when you receive email confirmation that your Transaction has been accepted (either from us or, if you book or place your order through a third party, from the third party), at which point the contract between us will become effective.

2.3 IF WE CANNOT ACCEPT YOUR ORDER

There may be some instances where we are unable to accept your order, such as where the subject of your reservation is no longer available, the relevant Product is now out of stock, we have identified a pricing or product description error, or you are in breach of these Terms (or any other agreement with us). We will inform you via email in the event that we are not able to accept your order as soon as possible.

2.4 PROCESSING PAYMENT

When you make a reservation to stay with us, we will take your payment details at the time of booking and then will require payment at check-in (or in respect of any of our restaurants, at the end of your meal), unless pre-payment is required in accordance with any specific booking or payment terms that are made available/notified to you when you seek to make a Transaction.

When you order any other Product (e.g., our branded products), we will take payment at the point of order (if online) or sale (if in person).

3. PRODUCTS AND RESERVATIONS

The Site may make available listings, descriptions, and images of the Products, as well as references and links to third party product.

3.1 OUR PRODUCTS

Please note that certain images, weights, measures, and similar descriptions that we provide in relation to our property (e.g., our rooms and common areas) and our other Products are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of our Products, including indicative rooms and colors in which our goods are available, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.

3.2 THIRD PARTY PRODUCTS

The availability through the Site of any listing, description or image of a third-party product does not imply our endorsement of such product or affiliation with the provider of such product. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions, or images (including any features, specifications and prices contained therein). Please note that where you may go on to purchase a third-party product, your contract is with the relevant third party and you should review the third party's relevant terms and conditions.

4. SHIPPING

Where you have made a Transaction for a Product that needs to be shipped, the Product will be shipped to the address designated by you, so long as the address is valid, complete and complies with the shipping restrictions contained on the Site.

If shipping is delayed by an event outside our reasonable control, we will contact you as soon as possible to let you know and we will take reasonable steps to minimize the delay, in which case, we will not be liable to you for the delay; however, if there is a significant delay, you may contact us to end the contract and receive a refund for any Products that you have not received. We will not be liable for any delay if you provide us with incorrect information.

All Transactions which require Products to be shipped are made pursuant to a shipment contract and, as a result, you are responsible for ensuring that you or someone acting on your behalf is present at your chosen address at the time of delivery that is provided to you and/or rearranging delivery with the shipping company. If you fail to re-arrange delivery, we reserve our rights to (i) charge you for any additional costs we incur to store your ordered Product and (ii) end your contract. Responsibility for any Product that is shipped passes to you upon delivery of the Product to your chosen address and you will own the Product once it is delivered to you.

5. RESERVATIONS

5.1 MAKING YOUR RESERVATION

When you make a reservation to stay with us, you agree to the conditions at the time of your reservation and for the duration of your stay.

(a) Each room may only be occupied by the number of adults and children advertised at the time of your reservation. If you are unsure about the occupancy of any room, you must ask us prior to making your reservation.

(b) If you have any accessibility requirements, you must provide these at the time of reservation so that we can confirm whether an appropriate room is available during your preferred dates. In some instances, we may not be able to accommodate your booking if you inform us of these requirements after we have accepted your reservation.

(c) Any minor must be accompanied by an adult over the age of eighteen (18). Please note that we may require you to provide a form of photo identification to prove your age at any time. If you are unable to do so, we reserve the right to terminate your reservation without a refund. Minors must not be left unattended on the premises at any time.

(d) Unless you have our prior written consent, you may not use our premises to conduct any commercial activities.

(e) You may only smoke in our designated smoking areas outside. You must not smoke in any other area, including anywhere inside the building.

(f) You may not bring onto our premises (i) any hazardous or otherwise potentially dangerous items, (ii) any cooking equipment, and (iii) any drugs or other illegal substances.

(g) You must not damage or interfere with any items that belong to us, our staff, or our other customers. You must bring any such damage or interference promptly to our attention.

(h) You must not disturb any other customers or our staff, including any noise disturbance.

You are responsible for all members of your reservation. If you or they breach any of the above terms, we may (i) terminate your reservation, (ii) (if applicable) subject to (5.1(c)) refund you for any unused portion of your reservation in accordance with our cancellation policy, (iii) retain any monies you have paid and/or apply an appropriate charge for any loss or costs we have incurred. You understand that such costs may involve (a) cleaning, repair, replacement and/or remedying any damage caused by your or another member of your booking's action or omission, (b) the cost of any relevant room (at the relevant rate at the time) that it is unusable, (c) any payments (including refunds) that we are consequently required to pay to our other customers, and (d) our administration expenses.

We reserve our rights to take any further action and may require you to make immediate re-payment of any costs and/or losses we may incur, deduct any such costs and/or losses from any payment details we hold in connection with your reservation or instruct a third party to recover our reasonable costs. We will send an appropriate breakdown of any such costs to the address provided in connection with your reservation.

5.2 CHECK-IN AND CHECK OUT

At check-out you will be required to pay for any additional charges you have incurred during your stay. If charges you incur during your stay are not reflected at the time of check-out (for example, if you need to check-out very early in the morning and wish to pay the night before), we will deduct payment for these charges from the payment method you provided at booking within two days.

5.3 RELOCATION

If the type of room you have booked is unavailable (except where due to an event outside our reasonable control – see Section 23.9) on your arrival, we shall either:

(a) provide you with an alternative room of equivalent or greater value (for which no additional charge will be payable);

or

(b) at your request or where, in our reasonable opinion, we are unable to find a suitable alternative, cancel your reservation and refund you any money you have already paid.

Please note that where we provide you with alternative accommodation, you shall have no right to receive a refund for any sums paid.

If you make one or more reservations to stay at our hotel for a period of twenty-eight (28) concurrent days, we may require you to move rooms. If you refuse to do so, we may terminate your reservation and refund any sums you have paid for any unused portion of your reservation.

5.4 MEMOIR HOTEL NEW ORLEANS.

When you make a reservation for the Memoir Hotel New Orleans, you further agree that your stay shall in all respects be transient in nature as a traveler under La. Civil Code article 3235 and in no event shall you establish your domicile in any room in the Memoir Hotel. In no event shall your reservation or stay at the Memoir Hotel New Orleans create any landlord-tenant relationship between you and the owner of the property (or any other party). Accordingly, you agree that you have no lease rights or otherwise have any immovable (real) property rights in connection with your stay at the Memoir New Orleans.

6. YOUR RIGHT TO MAKE CHANGES

If you change your mind and wish to make a change to your Transaction, please contact us at info@memoirresidential.com enclosing your confirmation / transaction number. We will let you know if the change is possible and any consequent changes, such as to the price or date, and ask you to confirm whether you wish to proceed with the change. Please note that we reserve the right to charge a fee to amend any order.

If we are unable to make your requested change or the consequent changes are unacceptable to you, you may, to the extent you are permitted to do so, wish to end the contract (see Section 8).

7. OUR RIGHT TO MAKE CHANGES

7.1 CHANGES TO THESE TERMS

We may make changes to these Terms from time to time. If we make changes to these Terms, we will notify you, such as by updating the “Effective Date” above and/or posting a notice on the Site. If you do not agree with the new version of these Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Site or make any new Transaction. By continuing to use the Site or by making a Transaction after the Effective Date you confirm your acceptance of the revised version of these Terms.

7.2 CHANGES TO OUR SITE AND ADVERTISED PRODUCTS

We may, at any time and without liability, modify or discontinue all or part of the Site (including access to the Site via any third-party links); charge, modify or waive any fees required to use the Site; or offer opportunities to some or all Site users.

Any information on our Site and the availability of any Product (including the validity of any coupon or discount) is subject to change at any time without notice. Subject to applicable law and Section 7.3 below, we reserve the right, including without prior notice, to limit the available quantity of, or discontinue making available, any Product; to impose conditions on the honoring of any offered coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Product.

7.3 PRODUCTS SUBJECT TO AN ORDER

If you have not yet paid us in full for a Product and the applicable sales tax changes between the date of your order and date of payment, we reserve the right to adjust the sales tax that you pay.

Minor changes

If, in accordance with Section 2, we have already accepted your order and we have not fulfilled such order at the time of updating these Terms, we reserve the right to make certain minor adjustments to the Product and/or these Terms. These minor changes may include, by way of example, where we are required to do so by a change in applicable law or regulation or if we are renovating a certain part of the building. For example, we may need to update the room you have chosen in connection with a renovation or due to a change in health and safety law, or change or replace a Product you have ordered in connection with product liability regulation.

Substantive changes

In certain circumstances we may need to make more substantive changes to these Terms, your Product-specific terms and/or the Products you have ordered. If such a change is required, we will notify you of the relevant change and a reasonable period during which you can object to such change. If you notify us of your objection prior to the end of this period, you may elect to end the contract before the relevant changes take effect and receive a refund of any payments you have already made for any Transaction (or part thereof, as applicable) that has not been fulfilled.

8. YOUR RIGHTS TO END THE CONTRACT

If you wish to end your contract, please contact us at info@memoirresidential.com.

You have the statutory right to receive any Products you order in accordance with these Terms and the product-specific terms. If the Product you receive is materially different from its description on our Site, we have provided an inadequate service, or the Product is faulty, we may replace it (such as delivering a replacement or providing an alternative room) or you may be entitled to a refund. If you wish us to replace a faulty Product, you must return it to us (where applicable) at our cost.

8.1 PRODUCTS OTHER THAN RESERVATIONS

In some circumstances, you also have the right to change your mind within fourteen (14) days (a) for goods, from the day on which you receive the goods, or (b) for services (except in respect of fixed reservations), from the day on which we confirm acceptance of your order (unless we have already completed the services). If you notify us within this period, you may receive a refund (provided (where applicable) that you return any ordered good(s) to us at your cost). Please note that we may be able to retain some or all the sums you have paid to us for your ordered good(s) to cover our reasonable costs. If you wish to cancel your order within this period (except in the case of a reservation – see below), please contact us on the email above.

8.2 RESERVATIONS

If you change your mind about a reservation, please see our cancellation policy as provided at check-out when you make your reservation and in your confirmation email.

9. OUR RIGHTS TO END THE CONTRACT

We may end your contract by notifying you in writing if (a) you do not pay us when due, (b) you are in breach of these Terms or the product-specific terms, (c) where relevant, you do not, within a reasonable time, allow us (or our relevant shipping partner) to deliver your ordered Product, or (d) you do not show up at your chosen hotel on the first day of your reservation.

If we end the contract, we will refund you for any Products you have not received, however, we will be entitled to deduct reasonable compensation for the costs we have or will incur as a result. We reserve the right to impose a cancellation charge according to our cancellation policy as available at the time of booking and provided to you in your confirmation email where you do not arrive at your chosen property on the first day of your reservation (and we will cancel your reservation.

We may also end the contract in limited circumstances where we have accepted your order and we have made an obvious pricing or Product error that could reasonably have been recognized by you as such. In such circumstances, we may end the contract, refund you any sums you have paid and (where applicable) require the return of any Products you have received.

10. REFUNDS

Where you are entitled to a refund of some or all the sums you have paid for any Product, we will refund such sums via your original payment method within fourteen (14) days of the date on which your Product is cancelled (subject to local regulations). Where you have paid using a voucher, we will refund you by issuing a new voucher of equivalent value.

11. OUR USE OF YOUR PERSONAL DATA

Please refer to our Privacy Policy, located at www.memoirresidential.com/privacy-policy (the “Privacy Policy”) for information about how we collect, use, and disclose information about you.

12. RULES OF CONDUCT ON OUR SITE

Unless you have received our express prior written consent, in connection with the Site, you must not:

(a) post, transmit, submit to, or otherwise make available through or in connection with the Site, any materials that are or may be: (a) illegal, threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right;

(b) post, transmit or otherwise make available through or in connection with the Site any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment;

(c) use the Site for any purpose that is fraudulent or otherwise tortious or unlawful;

(d) harvest or collect information about users of the Site;

(e) interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available, including by hacking or defacing any portion of the Site; or violate any requirement, procedure, or policy of such servers or networks;

(f) restrict or inhibit any other person from using the Site;

(g) reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan,

timeshare, distribute or otherwise exploit any portion of (or any use of) the Site except as expressly authorized herein;

(h) reverse engineer, decompile or disassemble any portion of the Site, except where such restriction is expressly prohibited by applicable law;

(i) remove any copyright, trademark or other proprietary rights notice from the Site;

(j) develop any means or use any third-party means that interact with the Site, including any scripts designed to scrape or extract data from the Site;

(k) frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site into any product or service;

(l) systematically download and store Site content;

(m) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Site content, or reproduce or circumvent the navigational structure or presentation of the Site. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site’s root directory, we grant to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. We reserve the right to revoke such permission either generally or in specific cases, at any time and without notice; or

(n) download or use any of the photography on the Site.

We reserve the right, in our discretion and at any time, to block or remove any content from the Site, suspend or discontinue any part of the Site, introduce new features, or impose limits on certain features, or restrict access to parts or all the Site.

13. REGISTRATION; USER NAMES AND PASSWORDS

To access and use certain areas or features of the Site, you may need to register for an account. By creating an account, you agree to (a) provide accurate, current, and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Site on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account.

By creating an account, you understand that you may receive electronic communications from us (e.g., via email or by posting notices to the Site). These communications may include notices about your account (e.g., payment authorizations, password changes, and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. Please see our Privacy Policy for information regarding marketing communications.

14. OUR PROPRIETARY RIGHTS

We and our group companies own the Site, which is protected by proprietary rights and laws. Subject to your compliance with the Terms, and solely for so long as you are permitted by us to use the Site, you are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Site for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell, or commercially use the Site or Products; (b) copy, reproduce, distribute, publicly perform, or publicly display the Site, except as expressly permitted by us or our licensors; (c) modify the Site, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Site; (d) use any data mining, robots, or similar data gathering or extraction methods; and (e) use the Site other than for their intended purposes. Any use of the Services or the content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

Our trade names, trademarks, trade dress and service marks include (but are not limited) to “Memoir”, "Memoir Residential", “Memoir Residences”, “Memoir Hotels”, “Memoir Warehouse District”, “Memoir Buckman”, and “Memoir Wedgewood Houston” and any associated logos (collectively, the “Memoir Residential Marks”). All trade names, trademarks, trade dress, service marks and logos on the Site not owned by us are the property of their respective owners. You may not (either directly or indirectly) use, copy, reproduce, republish, upload, post, transmit, distribute, register, attempt to register, or modify these marks, or any other marks that are confusingly similar to these marks, or any other marks appearing on this Site without our written consent. This prohibition on use of the Hotel 1928 Marks includes, without limitation, use as meta tags, in domain names, and on other sites.

Our Site content (including but not limited to text, graphics, logos, button icons, images, audio/video clips, digital downloads, data compilations, software used to operate the site, and all compilations of any of the above) is our property, or the property of our content suppliers and vendors, and are protected by copyright laws. You may use this Site’s content and downloadable software only as resources for your travel needs, and not for any other use (direct or indirect). Nothing contained on the Site should be construed as granting any right to use any copyrighted material, trade names, trademarks, service marks or logos without the express prior written consent of the owner.

15. FEEDBACK

We encourage feedback from users on how we can further improve accessibility to our Site by emailing us at info@memoirresidential.com. If you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Site or any of our Products (“Feedback”), then you agree that your disclosure is gratuitous, unsolicited, non-confidential and without restriction. We are free to use Feedback without any acknowledgement or compensation to you. We will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.

16. THIRD PARTY MATERIALS; LINKS

Certain Site functionality may make available access to materials made available by third parties (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third-Party Materials.

We neither control nor endorse, nor are we responsible for, any Third-Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third-Party Materials, or any intellectual property rights therein. When you access or use Third-Party Materials, you accept that there are risks in doing so, and that we are not responsible for such risks, regardless of whether or not we have a relationship with the entity offering such Third-Party Materials. We encourage you to be aware when you leave the Site and to read the terms and conditions and privacy policy of each Third-Party Site that you access or use. Certain Third-Party Materials may, among other things, be inaccurate, misleading, or deceptive. Nothing in the Terms shall be deemed to be a representation or warranty by us with respect to any Third-Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Site at any time. In addition, the availability of any Third-Party Materials through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider.

You acknowledge and agree that your interactions with such third parties are solely between you and such third parties, and that we are not responsible or liable in any manner for such interactions. Your use of Third-Party Materials is at your own risk and is subject to any additional terms, conditions, and policies applicable to such Third-Party Materials (such as terms of service or privacy policies of the providers of such Third-Party Materials).

17. DISCLAIMER OF WARRANTIES

The Site and Third-Party Materials are made available to you “AS IS” without any warranties of any kind, whether express, implied, or statutory. We disclaim all warranties with respect to the Site and Third-Party Materials to the fullest extent permissible under applicable law, including implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, and that use of the Site will be uninterrupted or error-free. All disclaimers of any kind (including in this Section and elsewhere in the Terms) are made both on our behalf and on behalf of our affiliates and their respective shareholders, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers, and service providers (collectively, the “Affiliated Entities”). Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion and limitations may not apply to you.

18. LIMITATION OF LIABILITY

18.1 GENERAL

Nothing in these Terms excludes or limits our liability for fraud, death or personal injury caused by our negligence or any other matter that it would be illegal for us to (or to attempt to) exclude or limit.

18.2 CONSUMERS

We and our Affiliated Entities will not be liable for any unforeseeable losses (being losses that we cannot foresee at the time of entering into the contract), business losses (for example your loss of profit, loss of business, business interruption or loss of business opportunity) or any losses caused by you or where you are at fault.

In respect of any reservation that you make to stay with us, and subject to the paragraph above, our maximum aggregate liability to you (including all members of your reservation) in respect of all damages, losses and causes of action that are not subject to a maximum sum under the Act, in accordance with Section 18.2, is subject to a cap of twice the average daily rate of your reservation.

Our maximum aggregate liability for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise in respect of your use of our Site, shall be the greater of $10.00 or the total amount, if any, paid by you to us to use the Site.

In respect of any Product that is not a reservation, our maximum aggregate liability for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise in respect of your use of such Product, shall be the greater of $10.00 or twice the total amount, if any, paid by you to us for the Product.

18.3 NON-CONSUMERS

To the fullest extent allowed by applicable law, we and our Affiliated Entities will not be liable for (a) damages for loss of profits, use, or data, revenue, income, profits, value of assets or securities, or other intangibles, even if advised in advance of the possibility of such damages or losses or (b) any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory.

Without limiting the foregoing, we will not be liable for damages of any kind resulting from your use of or inability to use the Site or from any Products or Third-Party Materials.

Your sole and exclusive remedy against us and our Affiliated Entities for dissatisfaction with the Site or any Products or Third-Party Materials is to stop using the Site and to end your contract with us.

Our maximum aggregate liability for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of $10.00 or the total amount, if any, paid by you to us to use the Site and for any Product.

19. TERMINATION

The Terms are effective until terminated.

19.1 YOUR USE OF THE SITE

We may terminate or suspend your use of the Site at any time and without prior notice, including if we believe that you have violated or acted inconsistently with the letter or spirit of the Terms. Upon any such termination or suspension, your right to use the Site will immediately cease, and we may, without liability to you or any third party, immediately deactivate or delete your username, password and account, and all associated materials, without any obligation to provide any further access to such materials.

19.2 TRANSACTIONS

We may terminate or suspend any Transaction in accordance with Section 9 above.

19.3 SURVIVING TERMS

Sections which, by their nature, are intended to survive shall survive any expiration or termination of the Terms.

20. DISPUTE RESOLUTION

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

You agree that these Terms, including this “Dispute Resolution Section,” affect interstate commerce and are governed by the Federal Arbitration Act.

This Dispute Resolution Section applies broadly to any dispute, claim or controversy ("Dispute") between you and the Company arising out of or relating to your use of this Site, these Terms, the Privacy Policy, other applicable company terms or policies, and any aspect of your relationship with us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Dispute shall be interpreted broadly. Dispute shall also include any dispute, claim, or controversy that arose before you assented to these Terms or after termination. Notwithstanding the foregoing, Dispute shall not include disputes, claims, or controversies concerning patents, copyrights, trademarks, trade secrets, and claims of piracy or unauthorized use of the Services. You or the Company may seek interim or preliminary relief from a court of competent jurisdiction as needed to protect the status quo pending completion of arbitration.

20.1 MANDATORY INFORMAL DISPUTE RESOLUTION PROCESS

We hope that no Disputes arise between you and the Company, and we are committed to working with you to resolve any Dispute that does arise. To that end, both Parties agree that we will make a good faith effort to resolve the Dispute informally for at least sixty (60) days before proceeding in arbitration or court pursuant to this “Informal Dispute Resolution Process.” You and the Company agree to give the other notice of the Dispute, by providing a written “Notice of Dispute” that is personally signed by you (if you are initiating the Notice of Dispute) or a Company representative (if we are initiating the Notice of Dispute). The Notice of Dispute must contain the following information: (1) the initiating Party’s name, address, telephone number, and email address, and account information, if applicable; (2) a detailed description of the nature and basis of the Dispute; and (3) the specific relief sought. You must send any such Notice of Dispute to the Company by email to legal@memoirresidential.com. We must send any such Notice of Dispute to you at the email address we have on file for you, if we have one; if we do not have an email address on file for you, you agree that we may attempt to reach you through other reasonable means. You and the Company agree to use their best efforts to settle any Dispute informally, for a sixty (60) day period from the date that a completed Notice of Dispute is received (or longer, if agreed by both Parties). If the party receiving the Notice of Dispute requests a telephone settlement conference as part of this informal process, you and the Company agree to participate in an effort to resolve the Dispute. Should the Company make this request, you agree to attend this conference (with your counsel, if you are represented). Should you make the request, the Company agrees to have a representative attend this conference (with counsel, if the Company is represented).

You and the Company agree that neither Party may initiate arbitration or litigation without first attempting to resolve the Dispute informally through this Informal Dispute Resolution Process, that adhering to the Informal Dispute Resolution Process is a condition precedent to arbitration or litigation, and that this requirement can be enforced by a court of competent jurisdiction. Any applicable limitations period (including the statute of limitations) and any filing fee deadlines shall be tolled while you and the Company engage in this Informal Dispute Resolution Process.

20.2 SMALL CLAIMS COURT

Any Dispute that falls within the jurisdictional scope and limits of the small claims court where you reside may be brought in that court on an individual basis. Any Dispute filed in small claims court must remain in small claims court and may not be removed or appealed to a court of general jurisdiction.

20.3 MANDATORY ARBITRATION

The Company believes that Disputes are most effectively and efficiently resolved on an individual basis through arbitration. BOTH YOU AND THE COMPANY AGREE THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS DISPUTE RESOLUTION SECTION, ANY INDIVIDUALIZED DISPUTE THAT IS NOT RESOLVED THROUGH THE INFORMAL DISPUTE RESOLUTION PROCESS OR SMALL CLAIMS COURT SHALL BE RESOLVED BY BINDING ARBITRATION PURSUANT TO THIS MANDATORY ARBITRATION CLAUSE OF THE DISPUTE RESOLUTION SECTION (“MANDATORY ARBITRATION CLAUSE”).

THE PARTIES UNDERSTAND AND AGREE THAT THEY MAY NOT FILE A CLAIM AS PART OF A MASS ARBITRATION. THE ARBITRATION PROVIDER SHALL PROMPTLY REJECT OR TERMINATE ANY MASS ARBITRATION CLAIM EITHER YOU OR THE COMPANY FILES AGAINST THE OTHER. THE PARTY AGAINST WHOM THE MASS ARBITRATION WAS FILED SHALL HAVE A RIGHT TO ENFORCE THIS AGREEMENT IN A COURT OF COMPETENT JURISDICTION AND SHALL BE ENTITLED TO RECOVER THEIR ATTORNEY’S FEES AND COSTS FOR SUCH ENFORCEMENT.

As used in the Mandatory Arbitration Clause, “Mass Arbitration” is defined as twenty-five (25) or more similar claims asserted against the Company by the same or coordinated attorney(s) or law firm(s), or that are otherwise coordinated.

The arbitration shall be administered by AAA pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures (“AAA Commercial Rules”), and other applicable rules, including without limitation, the AAA Consumer Arbitration Rules (“AAA Consumer Rules”), as modified by these Terms. The AAA Commercial Rules and AAA Consumer Rules are available at: adr.org. The arbitration will be heard by a single, neutral arbitrator (“Arbitrator”) selected pursuant to the AAA Rules, as modified by these Terms. If AAA is unable or unwilling to administer the arbitration consistent with these Terms, the parties shall agree on an alternative provider that will do so. If the parties cannot agree, they shall jointly petition a court of competent jurisdiction to appoint an arbitration provider that will do so.

Arbitration will be held in the county in which you reside. If AAA is unable to administer the arbitration in the county or parish in which you reside, the arbitration shall be administered by another provider selected by agreement of the Parties or a court, consistent with these Terms.

You and the Company's representative shall personally appear at any hearing ordered by the arbitrator (along with your and the Company's counsel, if represented). For claims of more than $25,000 (and for claims seeking individualized injunctive, equitable, or declaratory relief that are not brought in small claims court as set forth above), a telephone, virtual, or in-person hearing shall be held, and you and the Company’s representative shall personally appear (along with your and the Company’s counsel, if represented). Each party reserves the right to request a telephonic, video, or in-person hearing from the Arbitrator. The parties can agree to waive a hearing.

The party seeking to initiate arbitration must send the other party a “Demand for Arbitration” pursuant to the AAA Commercial Rules, any other applicable AAA rules,] and this Mandatory Arbitration Clause. If you are initiating arbitration, you shall serve the Demand for Arbitration on the Company by email to legal@memoirresidential.com. if we are initiating arbitration against you, we will serve the Demand for Arbitration on you by email to the email address we have on file for you or to the email address you identified during the Informal Dispute Resolution Process.

By signing and serving the Notice of Intent to Arbitrate, that party (and their counsel, if represented) certifies that they have complied with (1) the Informal Dispute Resolution Process and (2) the requirements of Federal Rule of Civil Procedure 11(b), including that the claims and relief sought are neither frivolous nor brought for an improper purpose. The Arbitrator is authorized to award any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or applicable federal or state law against all appropriate persons (including counsel) as a court would.

You and the Company agree that arbitration is designed to be cost-effective for all parties. The arbitration fees are governed by AAA’s Commercial Arbitration Rules and Mediation Procedures Administrative Fee Schedule (“Commercial Fee Schedule”) or Consumer Arbitration Rules Costs of Arbitration (“Consumer Fee Schedule”), as applicable, as modified by these Terms. AAA’s Commercial Fee Schedule and Consumer Fee Schedule are available at adr.org. You agree that if you initiate the arbitration, you will pay your filing fee. The Company agrees to pay its filing fee. If the Company initiates the arbitration, it will pay all fees.

All issues in any Dispute are for the Arbitrator to decide, including issues related to the scope or enforceability of the Mandatory Arbitration Clause, except the following, which are for a court of competent jurisdiction to decide: (1) any issues that are specifically reserved for a court in these Terms; (2) any and all disputes arising out of or relating to the enforceability of the Mass Arbitration Sub-Clause; and (3) whether a set of claims constitute a Mass Arbitration or whether one or more claims are part of a Mass Arbitration, as defined in these Terms. The Parties understand and agree that their individualized Dispute will be decided by an Arbitrator, not a judge or jury, unless these Terms explicitly provide otherwise.

THE PARTIES UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY MAY BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND THAT THEY MAY NOT ARBITRATE ANY CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE CLAIMS OR ANY CLAIMS BROUGHT ON BEHALF OF ANY OTHER PERSON OR ENTITY, UNLESS DOING SO AS A PARENT, GUARDIAN, OR WARD OF A MINOR OR IN ANOTHER SIMILAR CAPACITY FOR AN INDIVIDUAL WHO CANNOT OTHERWISE BRING THEIR OWN INDIVIDUAL CLAIM.

The Arbitrator may award relief, including, but not limited to, monetary, declaratory, injunctive, or other equitable relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The Arbitrator must follow these Terms, including this Mandatory Arbitration Clause, and can award the same individualized damages and relief as a court, including injunctive or other equitable relief necessary to provide relief as to the individualized claim.

The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. If the claimant in a Dispute rejects a formal settlement offer or offer of judgment and prevails but does not obtain an award that is more favorable than the offer, the claimant shall be liable for costs incurred by the respondent after the offer of judgment was made.

The decision of the arbitrator shall be in writing and shall briefly set forth the essential findings of fact and legal analysis. A judgment to enforce the award may be entered by a court of competent jurisdiction, however, any award that has been satisfied may not be filed or entered in court. The decision of the arbitrator shall have no preclusive effect in any proceeding involving non-identical parties.

THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT THEIR RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEAL MAY BE LIMITED IN ARBITRATION. BOTH PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PARTIES ALSO AGREE THAT THE ARBITRATOR’S AWARD, INCLUDING ANY AMENDMENTS, OR DECISION NOT TO GRANT ANY RELIEF, SHALL BE FINAL AND BINDING, AND MAY NOT BE APPEALED, UNLESS THE PARTIES EXPRESSLY AGREE OTHERWISE IN WRITING.

Unless otherwise prohibited by law, ALL ARBITRATION PROCEEDINGS WILL BE CONFIDENTIAL AND CLOSED TO THE PUBLIC AND ANY PARTIES OTHER THAN YOU AND THE COMPANY.

YOU HAVE THE RIGHT TO OPT OUT OF THIS MANDATORY ARBITRATION CLAUSE. You may opt out of this Mandatory Arbitration Clause in its entirety by sending the Company a personally signed, written notice of your decision to opt out of those changes by email to legal@memoirresidential.com within thirty (30) days of receiving notice of any version of these Terms updated on or after 20 May 2024, and include your full name and your mailing address, telephone number, and email address, a description of when and how you interacted with the Company, and a clear statement that you wish to opt out of this Mandatory Arbitration Clause. Your opt out must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. YOU AGREE THAT IF YOU EXERCISE YOUR RIGHT TO TIMELY OPT-OUT, YOU ARE REJECTING THE MANDATORY ARBITRATION CLAUSE AS A WHOLE AND MUST BRING YOUR CLAIM IN A COURT OF COMPETENT JURISDICTION IN THE COUNTY IN WHICH YOU RESIDE. YOU FURTHER AGREE THAT YOU WILL BE BOUND BY THE REST OF THESE TERMS. Your failure to timely opt out of this Mandatory Arbitration Clause shall constitute mutual acceptance of the terms of Mandatory Arbitration Clause by you and the Company.

20.4 MASS ARBITRATION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.

YOU AND THE COMPANY AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE THE RIGHT TO PARTICIPATE IN A MASS ARBITRATION AS DEFINED HEREIN, AND THAT ANY SUCH CLAIM AND/OR CLAIMS MUST BE BROUGHT IN A COURT OF COMPETENT JURISDICTION.

As used in this “Mass Arbitration Sub-Clause,” the term “Mass Arbitration” is defined as twenty-five (25) or more similar claims asserted against the Company by the same or coordinated attorney(s) or law firm(s), or that are otherwise coordinated. The term “Mass Arbitration Claim” is defined as any claim between the Parties that is part of a Mass Arbitration.

The Company strongly believes that Mass Arbitration is an inefficient and ineffective way to resolve Disputes. You and the Company understand and agree that Disputes may not be resolved through Mass Arbitration under any circumstances. All Mass Arbitration Claims must be litigated in a court of competent jurisdiction. You understand and agree that if you wish to arbitrate your claim, you must select counsel, if any, who are not involved in a Mass Arbitration against the Company.

A court of competent jurisdiction shall have the authority to determine whether a set of claims constitute a Mass Arbitration or whether one or more claims constitute Mass Arbitration Claims, as defined in this Mass Arbitration Sub-Clause. The Court shall strictly construe and apply the definitions of Mass Arbitration and Mass Arbitration Claim set forth in this Mass Arbitration Sub-Clause. THE APPLICABLE STATUTE OF LIMITATIONS SHALL BE TOLLED WHILE THE COURT MAKES EITHER OR BOTH OF THESE DETERMINATIONS. You may pursue your Mass Arbitration Claim in a court of competent jurisdiction, whether or not a court has found that your claim constitutes a Mass Arbitration Claim.

IF YOU FILE A MASS ARBITRATION CLAIM, YOU SHALL BE RESPONSIBLE FOR THE COMPANY’S ATTORNEY’S FEES AND COSTS RESULTING FROM THE IMPROPER ARBITRATION. A RESPONDENT TO A MASS ARBITRATION SHALL HAVE THE RIGHT TO RECOVER ITS ATTORNEY’S FEES AND COSTS IN A COURT OF COMPETENT JURISDICTION

IF THIS MASS ARBITRATION SUB-CLAUSE IS DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, THE ENTIRE MANDATORY ARBITRATION CLAUSE IS UNENFORCEABLE AND YOUR CLAIM MUST BE LITIGATED IN COURT, WITHOUT REGARD TO ANY OTHER SEVERABILITY OR OTHER PROVISION OF THESE TERMS.

21. INFORMATION OR COMPLAINTS

If you have a question or complaint regarding the Site, please send an e-mail to info@memoirresidential.com. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us.

22. COPYRIGHT INFRINGEMENT CLAIMS

We respect copyright law and the intellectual property rights of others, and we expect users of the Site to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. In appropriate circumstances, we will restrict access for users who are determined to be repeated copyright infringers.

If you believe that your proprietary work has been copied in a way that constitutes copyright infringement by any material on the Site, please e-mail our registered agent for notification of claims of infringement pursuant to Section 512(c) of the Copyright Act by sending a notice to legal@memoirresidential.com. In your notice, please provide the following information:

(a) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright;

(b) a description of the copyrighted work that you claim has been infringed;

(c) a description of the material that you claim to be 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 sufficient to permit us to locate the material;

(d) your contact information, including your address, telephone number and e-mail address;

(e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(f) a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed.

We reserve the right to remove materials alleged to be infringing without prior notice, at our sole discretion.

If you believe that any of your material was improperly disabled or removed from the Site, or your access was improperly disabled, please provide the following counter-notification to our Copyright Agent (see 17 U.S.C. Section 512(g) for further detail):

(a) your physical or electronic signature.

(b) a description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(c) a statement, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(d) your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept service of process from the person who provided notification of the alleged infringement.

See 17 U.S.C. Section 512(c)(3) for further detail about the Digital Millennium Copyright Act.

Our designated copyright agent for notice of alleged copyright infringement is:

AJMC LLC

Attn: Copyright Agent

429 Chestnut Street

Nashville, TN 37203

23. MISCELLANEOUS

23.1 NO PARTNERSHIP

The Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us.

23.2 RIGHTS OF THIRD PARTIES

This contract is between you and us. There are no third-party beneficiaries intended under these Terms except in respect of any term that is expressed to include our Affiliated Entities, who may seek to enforce such term(s) against you.

23.3 SEVERABILITY

If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from the Terms and will not affect the validity and enforceability of any remaining provision.

23.4 WAIVER AND ASSIGNMENT

You may not assign, transfer, or sublicense any or all your rights or obligations under the Terms without our express prior written consent. We may assign, transfer or sublicense any or all our rights or obligations under the Terms without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. No failure or delay on our part in exercising any right or remedy hereunder or enforcing the terms and conditions of the Terms will operate as a waiver thereof.

23.5 INTERPRETATION

Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in the Terms shall be construed as if followed by the phrase “without limitation.”

23.6 ENTIRE AGREEMENT

The Terms, including any terms and conditions incorporated herein, are the entire agreement between you and us relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter.

23.7 NOTICES

Notices to you (including notices of changes to the Terms) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail.

23.8 ADMISSIBILITY

Without limitation, a printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

23.9 EVENTS BEYOND OUR REASONABLE CONTROL

We will not be responsible for any failure to fulfil any obligation due to any cause beyond its control. Where we are prevented by applicable, law, regulation, government order or similar requirements from fulfilling your Transaction, for example during or in connection with the COVID-19 pandemic, we will provide you (to the extent reasonably practicable) with reasonable notice in advance and, in such circumstances, we may suggest alternative dates. If you are unhappy with the amended dates, you have the right to end our contract. In such cases, you recognize that we will not be liable to you for any amount in excess of the price paid for the unfulfilled Product (or part thereof).

24. CONTACT US

If you have any questions relating to the Terms, please contact us at: 429 Chestnut Street, Nashville, TN 37203, USA or info@memoirresidential.com.