Terms and Conditions
For Non-European Economic Area Users
If your country of residence is outside of the European Economic Area (“EEA”) or the United Kingdom, your agreement with ESR, LLC comprises the Terms and Conditions for Non-European Users.
If your country of residence is within the European Economic Area (“EEA”) or the United Kingdom, your agreement with ESR, LLC comprises the Terms and Conditions for European Users.
Terms and Conditions.
Please read these Terms and Conditions (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the ESR, LLC Jewel Trek Platform, you agree to comply with and be bound by these Terms. Please note: Section 18 of these Terms contains an arbitration clause and class action waiver that applies to all ESR, LLC Users, whether Users of the Jewel Trek Platform or any other app, product, platform, or service developed and/or owned by ESR, LLC. If your country of residence is the United States, this provision applies to all disputes with ESR, LLC. If your country of residence is outside of the United States, this provision applies to any action you bring against ESR, LLC in the United States. It affects how disputes with ESR, LLC are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
Last Updated: April 20, 2020.
Thank you for using ESR, LLC’s Jewel Trek App.
These Terms constitute a legally binding agreement ("Agreement") between you and ESR, LLC (as defined below) governing your access to and use of the ESR, LLC Jewel Trek Platform (app and website), including any subdomains thereof, and any other websites through which ESR, LLC Jewel Trek Platform makes its services available (collectively, "Site"), our mobile, tablet, and other smart device applications, and application program interfaces (collectively, "Application"), and all associated services (collectively, "ESR, LLC Jewel Trek Platform Services"). The Site, Application and ESR, LLC Jewel Trek Platform Services together are hereinafter collectively referred to as the “Jewel Trek Platform”. Our other Policies applicable to your use of the Jewel Trek Platform are incorporated by reference into this Agreement.
When these Terms mention “ESR, LLC Jewel Trek Platform,” “ESR, LLC,” “Jewel Trek,” Jewel Trek App,” “Jewel Trek App Platform,” “we,” “us,” or “our,” it refers to the ESR, LLC company you are contracting with for use of the Jewel Trek Platform. Your contracting entity will generally be determined based on your country of residence or establishment.
- If your country of residence or establishment is the United States, you are contracting with ESR, LLC, 11279 Penanova Street, San Diego, CA 92129, United States.
- If your country of residence or establishment is outside of the United States, you are contracting with ESR, LLC, Damkal Chowk, Pulchowk, Lalitpur, Nepal.
If you change your country of residence or establishment, the ESR, LLC company you contract with will be determined by your new country of residence or establishment as specified above, from the date on which your country of residence changes.
Our collection and use of personal information in connection with your access to and use of the ESR, LLC Jewel Trek Platform is described in our Privacy Policy.
Any and all payment processing services through or in connection with your use of the Jewel Trek Platform ("Payment Services") are provided to you by one or more third-party payment entities (individually and collectively, as appropriate, "Payment Processors"). Payment Processor terms and conditions can be found on the applicable Payment Processor website or app. Any Payment Services you use may require you agree to the Payment Processor’s terms and conditions, enter in an agreement with the Payment Processor, or agree to one or more other agreements, as required by the Payment Processor.
Trek Specialists alone are responsible for identifying, understanding, and complying with all laws, rules, and regulations that apply to their Listings and Guide Services (as defined below). In some cities in Nepal, Trek Specialists may be required to register, get a permit, or obtain a license with a local government authority, tourism board, or other permitting agency before providing certain Guide Services. Trek Specialists are alone responsible for identifying and obtaining any required licenses, permits, or registrations for any Guide Services they offer through the Jewel Trek Platform. Certain types of Guide Services may be prohibited altogether. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your Listing(s) and Guide Service(s) on the Jewel Trek Platform, you should always seek legal guidance.
1. Scope of ESR, LLC Jewel Trek Platform Services.
1.1 The ESR, LLC Jewel Trek Platform is an online marketplace that enables registered users (“Members”) and certain third parties who offer services (Members and third parties who offer services are “Trek Specialists” or “Guides” and the services they offer are “Guide Services”) to publish such Guide Services on the Jewel Trek Platform (“Listings”) and to communicate and transact with Members who are seeking to book such Guide Services (Members using Guide Services are “Trekkers”). Guide Services may include the offering of single or multi-day activities or treks in various categories and various locations in Nepal (“Experiences”) and a variety of other travel and trekking related services.
1.2 As the provider of the Jewel Trek Platform, ESR, LLC does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Guide Services, nor is ESR, LLC an organiser or retailer of travel packages under Directive (EU) 2015/2302. Guides alone are responsible for their Listings and Guide Services. When Members make or accept a booking, they are entering into a contract directly with each other. ESR, LLC is not and does not become a party to or other participant in any contractual relationship between Members, nor is ESR, LLC a broker or insurer. ESR, LLC is not acting as an agent in any capacity for any Member.
1.3 While we may help facilitate the resolution of disputes, ESR, LLC has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings or Guide Services, (ii) the truth or accuracy of any Listing descriptions, Ratings, Reviews, or other Member Content (as defined below), or (iii) the performance or conduct of any Member or third party. ESR, LLC does not endorse any Member, Listing, or Guide Services. Any references to a Member being "verified" (or similar language) only indicate the Member has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification, or guarantee by ESR, LLC about any Member, including of the Member's identity or background or whether the Member is trustworthy, safe, or suitable. You should always exercise due diligence and care when deciding whether to participate in an Experience or use other Guide Services, accept a booking request from a Trekker, or communicate and interact with other Members, whether online or in person. Verified Images (as defined below) are intended only to indicate a photographic representation of a Listing at the time the photograph was taken, and are therefore not an endorsement by ESR, LLC of any Guide or Listing.
1.4 If you choose to use the Jewel Trek Platform as a Guide or Co-Guide (as defined below), your relationship with ESR, LLC is limited to being an independent, third-party contractor, and not an employee, agent, joint venture, or partner of ESR, LLC for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of ESR, LLC. ESR, LLC does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of the Guide Services. You acknowledge and agree you have complete discretion whether to list Guide Services or otherwise engage in other business or employment activities.
1.5 To promote the ESR, LLC Jewel Trek Platform and to increase the exposure of Listings to potential Trekkers, Listings and other Member Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements. To assist Members who speak different languages, Listings and other Member Content may be translated, in whole or in part, into other languages. ESR, LLC cannot guarantee the accuracy or quality of such translations and Members are responsible for reviewing and verifying the accuracy of such translations. The ESR, LLC Jewel Trek Platform may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose, and non-infringement.
1.6 The Jewel Trek Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. ESR, LLC is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by ESR, LLC of such Third-Party Services.
1.7 Due to the nature of the Internet, ESR, LLC cannot guarantee the continuous and uninterrupted availability and accessibility of the Jewel Trek Platform. ESR, LLC may restrict the availability of the Jewel Trek Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Jewel Trek Platform. ESR, LLC may improve, enhance and modify the Jewel Trek Platform and introduce new Jewel Trek Services from time to time.
2. Eligibility, Using the Jewel Trek App Platform, Member Verification.
2.1 In order to access and use the Jewel Trek App Platform or register an ESR, LLC Account you must be an individual at least 18 years old or a duly organized, validly existing business, organization, or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts.
2.2 You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that (i) neither you nor your Guide Service(s) are located or take place 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
2.3 ESR, LLC may make access to and use of the Jewel Trek Platform, or certain areas or features of the Jewel Trek Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or a Member’s booking and cancellation history. Each user will be permitted only one account on the Jewel Trek Platform.
2.4 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Members to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members, (ii) screen Members against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
2.5 The access to or use of certain areas and features of the Jewel Trek Platform may be subject to separate policies, standards, or guidelines, or may require you accept additional terms and conditions, before you can access the relevant areas or features of the Jewel Trek Platform. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Jewel Trek Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions.
2.6 If you access or download the Application from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement. If you access or download the Application from the Google Play store, you agree to Google’s Terms of Service. Some areas of the Jewel Trek Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms and Conditions.
3. Modification of these Terms.
ESR, LLC reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Jewel Trek Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Jewel Trek Platform will constitute acceptance of the revised Terms.
4. Account Registration.
4.1 You must register an account ("Jewel Trek Account") to access and use certain features of the Jewel Trek Platform, such as publishing or booking Guide Services. If you are registering an Jewel Trek Account for a business, organization, or other legal entity, you represent and warrant you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
4.2 You can register a Jewel Trek Account using an email address and creating a password.
4.3 You must provide accurate, current, and complete information during the registration process and keep your Jewel Trek Account and public Jewel Trek Account profile page information up-to-date at all times.
4.4 You may not register more than one (1) Jewel Trek Account unless ESR, LLC authorizes you to do so. You may not assign or otherwise transfer your Jewel Trek Account to another party.
4.5 You are responsible for maintaining the confidentiality and security of your Jewel Trek Account credentials and may not disclose your credentials to any third party. You must immediately notify ESR, LLC if you know or have any reason to suspect your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Jewel Trek Account. You are liable for any and all activities conducted through your Jewel Trek Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
4.6 ESR, LLC may enable features that allow you to authorize other Members or certain third parties to take certain actions that affect your Jewel Trek Account. For example, we may enable Members to link their Jewel Trek Accounts to businesses and take actions for those businesses, we may enable eligible Members or certain third parties to book Guide Services on behalf of other Members, or we may enable Guides to add other Members as Co-Guides (as defined below) to help manage their Listings. These features do not require you share your credentials with any other person. No third party is authorized by ESR, LLC to ask for your credentials, and you shall not request the credentials of another Member.
5. Content
5.1 ESR, LLC may, at its sole discretion, enable Members to (i) create, upload, post, send, receive, and store content, such as text, photos, audio, video, or other materials and information on or through the Jewel Trek Platform ("Member Content"); and (ii) access and view Member Content and any content the Jewel Trek Platform itself makes available on or through the Jewel Trek Platform, including proprietary ESR, LLC and Jewel Trek Platform content and any content licensed or authorized for use by or through ESR, LLC or the Jewel Trek Platform from a third party ("Jewel Trek Platform Content" and together with Member Content, "Collective Content").
5.2 The ESR, LLC Jewel Trek Platform, Jewel Trek Platform Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree the Jewel Trek Platform and Jewel Trek Platform Content, including all associated intellectual property rights, are the exclusive property of ESR, LLC and/or its licensors or authorizing third-parties. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Jewel Trek Platform, Jewel Trek Platform Content, or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of ESR, LLC used on or in connection with the Jewel Trek Platform and Jewel Trek Platform Content are trademarks or registered trademarks of ESR, LLC in the United States and abroad. Trademarks, service marks, logos, trade names, and any other proprietary designations of third parties used on or in connection with the Jewel Trek Platform, Jewel Trek Platform Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the ESR, LLC website, Jewel Trek Platform, or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by ESR, LLC or its licensors, except for the licenses and rights expressly granted in these Terms.
5.4 Subject to your compliance with these Terms, ESR, LLC grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any Collective Content made available on or through the Jewel Trek Platform and accessible to you, solely for your personal and non-commercial use.
5.5 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the Jewel Trek Platform, you grant to ESR, LLC a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable, and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the Jewel Trek Platform, in any media or platform. Insofar as Member Content (including Verified Images) includes personal information, such Member Content will only be used for these purposes if such use complies with applicable data protection laws in accordance with our Privacy Policy. Unless you provide specific consent, ESR, LLC does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights you may have to use or exploit your Member Content.
5.6 ESR, LLC may offer Guides the option of having professional photographers take photographs of their Guide Services, which are made available by the photographer to Guides to include in their Listings with or without a watermark or tag bearing the words " Jewel Trek App Verified Photo" or similar wording ("Verified Images"). You are responsible for ensuring your Guide Service is accurately represented in the Verified Images and you will stop using the Verified Images on or through the Jewel Trek Platform if they no longer accurately represent your Listing, if you stop offering the Guide Service featured, or if your Jewel Trek Platform Account is terminated or suspended for any reason. You acknowledge and agree that ESR, LLC shall have the right to use any Verified Images in accordance with Section 5.5 for advertising, marketing, and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. Where ESR, LLC is not the exclusive owner of Verified Images, by using such Verified Images on or through the Jewel Trek Platform, you grant to ESR, LLC an exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable, and transferable license to use such Verified Images for advertising, marketing, and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. ESR, LLC in turn grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use Verified Images outside of the Jewel Trek Platform solely for your personal and non-commercial use.
5.7 You are solely responsible for all Member Content you make available on or through the Jewel Trek Platform. Accordingly, you represent and warrant: (i) you either are the sole and exclusive owner of all Member Content you make available on or through the Jewel Trek Platform or you have all rights, licenses, consents, and releases necessary to grant to ESR, LLC the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission, or transmittal of the Member Content or ESR, LLC’s use of the Member Content (or any portion thereof) as contemplated under these Terms will infringe, 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.
5.8 You will not post, upload, publish, submit, or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information), or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar, or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates Jewel Trek Platform’s Content Policy or any other ESR, LLC policy. ESR, LLC may, without prior notice, remove or disable access to any Member Content that ESR, LLC finds to be in violation of applicable law, these Terms, or ESR, LLC’s then-current Policies or Standards, or otherwise may be harmful or objectionable to ESR, LLC or the Jewel Trek Platform, its Members, third parties, or property.
5.9 ESR, LLC respects copyright law and expects its Members to do the same. If you believe any content on the Jewel Trek Platform infringes copyrights you own, please notify us in accordance with our Copyright Policy.
6. Service Fees
6.1 ESR, LLC may charge fees to Guides ("Guide Fees") and/or Trekkers ("Trekker Fees") (collectively, "Service Fees") in consideration for the use of the Jewel Trek Platform. More information about when Service Fees apply and how they are calculated can be found on our Service Fees page.
6.2 Any applicable Service Fees (including any applicable Taxes) will be displayed to a Guide or Trekker prior to publishing or booking Guide Services. ESR, LLC reserves the right to change the Service Fees at any time, and will provide Members adequate notice of any fee changes before they become effective. Such fee changes will not affect any bookings made prior to the effective date of the fee change.
6.3 You are responsible for paying any Service Fees you owe to ESR. ESR, LLC will deduct any Guide Fees from the Listing Fee before remitting the payout to the Guide. Any Trekker Fees are included in the Total Fees collected by ESR, LLC. Except as otherwise provided on the Jewel Trek Platform, Service Fees are non-refundable.
7. Terms specific for Guides
7.1 Terms applicable to all Listings
7.1.1 When creating a Listing through the Jewel Trek Platform you must (i) provide complete and accurate information about your Guide Service (such as listing description, location, and calendar availability), (ii) disclose any deficiencies, restrictions, and requirements that apply (such as any minimum age, proficiency, or fitness requirements), and (iii) provide any other pertinent information requested by ESR, LLC. You are responsible for keeping your Listing information (including calendar availability) up-to-date at all times.
7.1.2 You are solely responsible for setting a price (including any taxes, if applicable, or other charges such as porter fees) for your Listing (“Listing Fee”). Once a Trekker requests a booking of your Listing, you may not request that the Trekker pays a higher price than in the booking request.
7.1.3 Any terms and conditions included in your Listing, in particular in relation to cancellations, must not conflict with these Terms or the relevant cancellation policy for your Listing.
7.1.4 Pictures, animations, or videos (collectively, "Images") used in your Listings must accurately reflect the quality and condition of your Guide Services. ESR, LLC reserves the right to require Listings have a minimum number of Images of a certain format, size and resolution.
7.1.5 The placement and ranking of Listings in search results on the Jewel Trek Platform may vary and depend on a variety of factors, such as Trekker search parameters and preferences, Guide requirements, price and calendar availability, number and quality of Images, customer service and cancellation history, Reviews and Ratings, type of Guide Service, and/or ease of booking.
7.1.6 When you accept or have pre-approved a booking request by a Trekker, you are entering into a legally binding agreement with the Trekker and are required to provide your Guide Service(s) to the Trekker as described in your Listing when the booking request is made. You also agree to pay the applicable Guide Fee and any applicable Taxes.
7.1.7 ESR, LLC recommends that Guides obtain appropriate insurance for their Guide Services. Please review any respective insurance policy carefully, and in particular make sure you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Trekkers (and the individuals the Trekker has booked for, if applicable) while using your Guide Services.
7.2 Co-Guides
7.2.1 ESR, LLC may enable Guides to authorize other Members (“Co-Guides”) to administer the Guide’s Listing(s), and to bind the Guide and take certain actions in relation to the Listing(s) as permitted by the Guide, such as accepting booking requests, messaging and welcoming Trekkers, and updating the Listing Fee and calendar availability (collectively, “Co-Guide Services”). Any agreement formed between Guide and Co-Guide may not conflict with these Terms, the Payments Terms, or any other Policies applicable to your Guide Service(s). Co-Guides may only act in an individual capacity and not on behalf of a company or other organization, unless expressly authorized by ESR, LLC. ESR, LLC reserves the right, in our sole discretion, to limit the number of Co-Guides a Guide may invite for each Listing and to limit the number of Listings a Co-Guide may manage.
7.2.2 Guides should exercise due diligence and care when deciding who to add as a Co-Guide to their Listing(s). Guides remain solely responsible and liable for any and all Listings and Member Content published on the Jewel Trek Platform, including any Listing created by a Co-Guide on their behalf. Further, Guides remain responsible and liable for their own acts and omissions, including, but not limited to, conduct that causes harm or damage to the Co-Guide(s). Co-Guides remain responsible and liable for their own acts and omissions when engaging in their roles and responsibilities as a Co-Guide, including, but not limited to, conduct that causes harm or damage to the Guide. In addition, both Guide and Co-Guide are jointly responsible and severally liable for third party claims, including Trekker claims, arising from the acts and omissions of the other person as related to Guiding activities, communications with Trekkers, and the provision of any Co-Guide Services.
7.2.3 Unless agreed otherwise by Guide and Co-Guide, Guide and Co-Guide may terminate the Co-Guide agreement at any time. In addition, both Guide and Co-Guide acknowledge their Co-Guiding relationship will terminate in the event that ESR, LLC (i) terminates the Co-Guide service or (ii) terminates either party’s participation in the Co-Guide service. When the Co-Guide agreement is terminated, the Guide will remain responsible for all of the Co-Guide’s actions prior to the termination, including the responsibility to fulfill any pending or future bookings initiated prior to the termination. When a Member is removed as a Co-Guide, that Member will no longer have access to any Guide or Trekker information related to the applicable Guide’s Listing(s).
7.2.4 As a Co-Guide, you will not be reviewed by Trekkers, meaning that your Co-Guide activities will not affect your Reviews or Ratings for other Listings for which you are a Guide. Instead, the Guide of such Listing(s) will be reviewed by Trekkers (including potentially on the basis of the Co-Guide’s conduct and performance). Guides acknowledge that Reviews and Ratings from Trekkers for their Listing(s) may be impacted by a Co-Guide’s conduct and performance.
8. Terms specific for Trekkers
8.1 Terms applicable to all bookings
8.1.1 Subject to meeting any requirements (such as completing any verification processes) set by ESR, LLC and/or the Guide, you can book a Listing available on the Jewel Trek Platform by following the respective booking process. All applicable fees, including the Security Deposit (if applicable), Service Fees, and any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to booking a Listing. You agree to pay the Total Fees for any booking requested in connection with your ESR, LLC Account.
8.1.2 Upon receipt of a booking confirmation from ESR, LLC, a legally binding agreement is formed between you and your Guide, subject to any additional terms and conditions of the Guide that apply, including in particular the applicable cancellation policy and any rules and restrictions specified in the Listing. ESR, LLC will collect the Total Fees through a Payment Processor at the time of the booking request or upon the Guide’s confirmation pursuant to the Payments Terms. For certain bookings, Trekkers may be required to pay or have the option to pay in multiple installments.
8.1.3 If you book a Guide Service on behalf of additional Trekkers, you are required to ensure that every additional Trekker meets any requirements set by the Guide, and is made aware of and agrees to these Terms and any terms and conditions, rules, and restrictions set by the Guide. If you are booking for an additional Trekker who is a minor, you represent and warrant you are legally authorized to act on behalf of the minor. Minors may only participate in the trek using the Guide Service if accompanied by an adult who is responsible for them.
8.1.4 ESR, LLC may enable a Trekker who is booking a Listing on behalf of one or more additional Trekkers (the “Organizer”) to split the payment of the Total Fees for an eligible booking on a pro-rata basis between the Organizer and at least one other additional Trekker (each a “Co-Payer”) (the “Group Payment Service”). In order to participate in the Group Payment Service, each Co-Payer must have or register an ESR, LLC Account prior to making a payment. All payments via the Group Payment Service are handled by ESR, LLC through a Payment Processor and are subject to the Group Payment Terms and Conditions.
8.2 Booking Experiences, Events and other Guide Services
8.2.1 You should carefully review the description of any Guide Service you intend to book to ensure you (and any additional Trekkers you are booking for) meet any minimum age, proficiency, fitness, or other requirements which the Guide has specified in his/her Listing. At your sole discretion you may want to inform the Guide of any medical or physical conditions, or other circumstances that may impact your and any additional Trekker’s ability to participate in any trek or Guide Service. You are responsible for identifying, understanding, and complying with all laws, rules, and regulations that apply to your participation in a trek and Guide Service.
8.2.2 Before and during trek and Guide Service you must at all times adhere to the Guides’ instructions.
8.2.3 You may not bring any additional individuals to a trek and Guide Service unless such an individual was added by you as an additional Trekker during the booking process on the Jewel Trek Platform.
8.4 ESR, LLC Travel Credits
ESR, LLC Travel Credits may be redeemed for eligible bookings via the Jewel Trek Platform as specified in the terms and conditions provided with the Travel Credit. You may only redeem ESR, LLC Travel Credits after the ESR, LLC Travel Credits are reflected in your ESR, LLC Account.
9. Booking Modifications, Cancellations and Refunds, Resolution Center
9.1 Guides and Trekkers are responsible for any modifications to a booking they make via the Jewel Trek Platform or direct ESR, LLC customer service to make ("Booking Modifications"), and agree to pay any additional fees and/or Taxes associated with such Booking Modifications.
9.2 Trekkers can cancel a confirmed booking at any time pursuant to the Listing’s cancellation policy set by the Guide, and ESR, LLC will refund the amount of the Total Fees due to the Trekker in accordance with such cancellation policy. Unless extenuating circumstances exist, any portion of the Total Fees due to the Guide under the applicable cancellation policy will be remitted to the Guide by ESR, LLC pursuant to the Terms and Conditions.
9.3 If a Guide cancels a confirmed booking, the Trekker will receive a full refund of the Total Fees for such booking unless ESR, LLC is able to offer the Trekker a suitable alternative Guide that is approved by the Trekker. In some instances, ESR, LLC may allow the Trekker to apply the refund to a new booking, in which case ESR, LLC will credit the amount against the Trekker’s subsequent booking at the Trekker’s direction. Further, ESR, LLC may publish an automated review on the Listing cancelled by the Guide indicating that a booking was cancelled. In addition, ESR, LLC may (i) keep the calendar for the Listing unavailable or blocked for the dates of the cancelled booking, and/or (ii) impose a cancellation fee, unless the Guide has a valid reason for cancelling the booking pursuant to ESR, LLC’s Extenuating Circumstances Policy or has legitimate concerns about the Trekker’s behavior.
9.4 If weather poses a safety risk to Trekkers, or if it prevents a Guide from carrying out a Guide Service, Guides may cancel the Guide Service. Guides may also cancel the Guide Service if other conditions exist that would prevent the Guide from offering the Guide Service safely. In the event of such cancellation, ESR, LLC will refund Trekker in accordance with the Trekker Refund Policy.
9.5 In certain circumstances, ESR, LLC may decide, in its sole discretion, that it is necessary to cancel a pending or confirmed booking and initiate corresponding refunds and payouts. This may be for reasons set forth in ESR, LLC's Extenuating Circumstances Policy or (i) where ESR, LLC believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to ESR, LLC, other Members, third parties or property, or (ii) for any of the reasons set out in these Terms.
9.6 If a Trekker suffers a travel Issue as defined in the Trekker Refund Policy, ESR, LLC may determine, in its sole discretion, to refund the Trekker part or all of the Total Fees in accordance with the Trekker Refund Policy. If a Trekker suffers a Travel Issue as defined in the Trekker Refund Policy, ESR, LLC may determine, in its sole discretion, to refund the Trekker part or all of the Total Fees in accordance with the Trekker Refund Policy.
9.7 If a Trekker or ESR, LLC cancels a confirmed booking, and the Trekker receives a refund in accordance with the Trekker Refund Policy, Extenuating Circumstances Policy, or the applicable cancellation policy set by the Guide and mentioned in the Listing, after the Guide has already been paid, ESR, LLC will be entitled to recover the amount of any such refund from the Guide, including by subtracting such refund amount out from any future Payouts due to the Guide.
10. Ratings and Reviews
10.1 Within a certain time frame after completing a booking, Trekkers and Guides can leave a public review (“Review”) and submit a star rating (“Rating”) about each other. Ratings or Reviews reflect the opinions of individual Members and do not reflect the opinion of ESR, LLC. Ratings and Reviews are not verified by ESR, LLC for accuracy and may be incorrect or misleading.
10.2 Ratings and Reviews by Trekkers and Guides must be accurate and may not contain any offensive or defamatory language. Ratings and Reviews are subject to Section 5 and must comply with ESR, LLC’s Content Policy and Extortion Policy.
10.3 Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another Member.
10.4 Ratings and Reviews are part of a Member’s public profile and may also be surfaced elsewhere on the Jewel Trek Platform (such as the Listing page) together with other relevant information such as number of bookings, number of cancellations, average response time, and other information.
11. Rounding off
ESR, LLC generally supports payment amounts that are payable from or to Trekkers or Guides to the smallest unit supported by a given currency (i.e., U.S. cents, Euro cents, or other supported currencies). Where ESR, LLC’s third-party payment services provider does not support payments in the smaller unit supported by a given currency, ESR, LLC may, in its sole discretion, round up or round down the displayed amounts that are payable from or to Trekkers or Guides to the nearest whole functional base unit in which the currency is denominated (i.e. to the nearest US Dollar, Euro, or other supported currency); for example, ESR, LLC may round up an amount of $101.50 to $102.00, and round down an amount of $101.49 to $101.00.
12. Taxes
12.1 As a Guide, you are solely responsible for determining your obligations to report, collect, remit, or include in your Listing Fees any applicable VAT or other indirect sales taxes, occupancy tax, tourist or other visitor taxes, or income taxes ("Taxes").
12.2 Tax regulations may require us to collect appropriate Tax information from Guides, or to withhold Taxes from payouts to Guides, or both. If a Guide fails to provide us with the required documentation under applicable law (e.g., a tax number) that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from payouts to you, we reserve the right to withhold payouts up to the tax-relevant amount as required by law, until resolution.
12.3 You understand that any appropriate governmental agency, department, and/or authority ("Tax Authority") where your Accommodation is located may require Taxes to be collected from Trekkers or Guides on fees, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these Taxes may be required to be collected and remitted as a percentage of the fees set by Guides, a set amount per day, or other variations, and are sometimes called "city taxes" or "tourist taxes."
13. Prohibited Activities
13.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Jewel Trek Platform. In connection with your use of the Jewel Trek Platform, you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, policies, or standards;
- use the Jewel Trek Platform for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies ESR, LLC endorsement, partnership, or otherwise misleads others as to your affiliation with ESR, LLC;
- copy, store, or otherwise access or use any information, including personally identifiable information about any other Member, contained on the Jewel Trek Platform in any way that is inconsistent with ESR, LLC’s Privacy Policy or these Terms or that otherwise violates the privacy rights of Members or third parties;
- use the Jewel Trek Platform in connection with the distribution of unsolicited commercial messages ("spam");
- offer, as a Guide, any trek you are incapable of carrying out through the Jewel Trek Platform;
- unless ESR, LLC explicitly permits otherwise, book any Listing if you will not actually be using the Guide Services yourself;
- contact another Member for any purpose other than asking a question related to your own booking, Listing, or the Member's use of the Jewel Trek Platform, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
- use the Jewel Trek Platform to request, make, or accept a booking independent of the Jewel Trek Platform, to circumvent any Service Fees or for any other reason;
- request, accept, or make any payment for fees outside of the Jewel Trek Platform or ESR, LLC-approved Payment Processor application. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold ESR, LLC harmless from any liability for such payment;
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age, or sexual orientation, or otherwise engage in any violent, harmful, abusive, or disruptive behavior;
- use, display, mirror, or frame the Jewel Trek Platform, or any individual element within the Jewel Trek Platform, ESR, LLC's name, any ESR, LLC trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page in the Jewel Trek Platform, without ESR, LLC's express written consent;
- dilute, tarnish, or otherwise harm the ESR, LLC or Jewel Trek brand in any way, including through unauthorized registering and/or using ESR, LLC or derivative terms in domain names, trade names, trademarks, or other source identifiers, or registering, and/or using domains names, trade names, trademarks, or other source identifiers that closely imitate or are confusingly similar to ESR, LLC domains, trademarks, taglines, promotional campaigns, or Collective Content;
- use any robots, spider, crawler, scraper, or other automated means or processes to access, collect data, or other content from or otherwise interact with the Jewel Trek Platform for any purpose;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by ESR, LLC or any of ESR, LLC's providers or any other third party to protect the Jewel Trek Platform;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Jewel Trek Platform;
- take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Jewel Trek Platform;
- export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
13.3 If you feel any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent, or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to ESR, LLC by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
14. Term and Termination, Suspension, and other Measures
14.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or ESR, LLC terminate the Agreement in accordance with this provision.
14.2 You may terminate this Agreement at any time by sending us an email. If you cancel your ESR, LLC Account as a Guide, any confirmed booking(s) will be automatically cancelled, will be subject to the Bookings Cancellation Policy, and your Trekkers will receive a full refund. If you cancel your ESR, LLC Account as a Trekker, any confirmed booking(s) will be automatically cancelled and any refund will depend upon the terms of the Listing’s cancellation policy.
14.3 Without limiting our rights specified below, ESR, LLC may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
14.4 ESR, LLC may immediately, without notice, terminate this Agreement and/or stop providing access to the Jewel Trek Platform if (i) you have materially breached your obligations under these Terms, the Payment Terms, our Policies or Standards, (ii) you have violated applicable laws, regulations or third party rights, or (iii) ESR, LLC believes in good faith that such action is reasonably necessary to protect the personal safety or property of ESR, LLC, its Members, or third parties (for example in the case of fraudulent behavior of a Member).
14.5 In addition, ESR, LLC may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, the Payment Terms, our Policies or Standards, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated, or incomplete information during the ESR, LLC Account registration, Listing process or thereafter, (iv) you and/or your Listings or Guide Services at any time fail to meet any applicable quality or eligibility criteria, (v) you have repeatedly received poor Ratings or Reviews or ESR, LLC otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly cancelled confirmed bookings or failed to respond to booking requests without a valid reason, or (vii) ESR, LLC believes in good faith that such action is reasonably necessary to protect the personal safety or property of ESR, LLC, its Members, or third parties, or to prevent fraud or other illegal activity:
- refuse to surface, delete or delay any Listings, Ratings, Reviews, or other Member Content;
- cancel any pending or confirmed bookings;
- limit your access to or use of the Jewel Trek Platform;
- temporarily or permanently revoke any special status associated with your ESR, LLC Account;
- temporarily or in case of severe or repeated offenses permanently suspend your ESR, LLC Account and stop providing access to the Jewel Trek Platform.
14.6 If we take any of the measures described above (i) we may refund your Trekkers in full for any and all confirmed bookings that have been cancelled, irrespective of preexisting cancellation policies, and (ii) you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
14.7 When this Agreement has been terminated, you are not entitled to a restoration of your ESR, LLC Account or any of your Member Content. If your access to or use of the Jewel Trek Platform has been limited or your ESR, LLC Account has been suspended or this Agreement has been terminated by us, you may not register a new ESR, LLC Account or access and use the Jewel Trek Platform through an ESR, LLC Account of another Member.
14.8 Sections 5 and 15 to 21 of these Terms shall survive any termination or expiration of this Agreement.
15. Disclaimers
If you choose to use the Jewel Trek Platform, you do so voluntarily and at your sole risk. The Jewel Trek Platform is provided “as is” and without warranty of any kind, either express or implied.
You agree you have had whatever opportunity you deem necessary to investigate the ESR, LLC Services, laws, rules, or regulations that may be applicable to your Listings and/or Guide Services you are receiving and you are not relying upon any statement of law or fact made by ESR, LLC relating to a Listing.
If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee a Member will not engage in misconduct in the future.
You agree treks and Guide Services may carry inherent risk, and by participating in such services, you choose to assume those risks voluntarily. For example, some Guide Services may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Guide Services. You assume full responsibility for the choices you make before, during, and after your participation in a Guide Service or the Group Payment Service. If you are bringing a minor as an additional Trekker, you are solely responsible for the supervision of that minor throughout the duration of your Guide Service and to the maximum extent permitted by law, you agree to release and hold harmless ESR, LLC from all liabilities and claims that arise in any way from any injury, death, loss, or harm that occurs to that minor during the Guide Service or in any way related to your Guide Service.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
16. Liability
You acknowledge and agree, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Jewel Trek Platform, your publishing or booking of any Listing via the Jewel Trek Platform, participation in any trek or Guide Service, or any other interaction you have with other Members whether in person or online remains with you. Neither ESR, LLC nor any other party involved in creating, producing, or delivering the Jewel Trek Platform will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, loss of data, or loss of goodwill, service interruption, computer damage or system failure, or the cost of substitute products or services, or for any damages for personal or bodily injury, death, dismemberment, or accident of any kind or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Jewel Trek Platform, (iii) from any participation in any Trek or Guide Service, (iv) from any communications, interactions, or meetings with other Members or other persons with whom you communicate, interact, or meet with as a result of your use of the Jewel Trek Platform, or (v) from your publishing or booking of a Listing, including the provision or use of a Listing’s Guide Services, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not ESR, LLC has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Guides pursuant to these Terms, in no event will ESR, LLC’s aggregate liability arising out of or in connection with these Terms and your use of the Jewel Trek Platform including, but not limited to, from your publishing or booking of any Listings via the Jewel Trek Platform, or from the use of or inability to use the Jewel Trek Platform or Collective Content and in connection with any trek or Guide Service, or interactions with any other Members, exceed the amounts you have paid or owe for bookings via the Jewel Trek Platform as a Trekker in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Guide, the amounts paid by ESR, LLC to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between ESR, LLC and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect ESR, LLC’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter, or any other liability that cannot be excluded or limited under applicable law.
17. Indemnification
To the maximum extent permitted by applicable law, you agree to release, defend (at ESR, LLC’s option), indemnify, and hold ESR, LLC and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the Jewel Trek Platform or any ESR, LLC services, (iii) your interaction with any Member, or trek or Guide Service, including without limitation any injuries, losses, or damages (whether compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation, or use, or (iv) your breach of any laws, regulations, or third party rights.
18. Dispute Resolution and Arbitration Agreement
18.1 This Dispute Resolution and Arbitration Agreement shall apply if your (i) country of residence or establishment is in the United States; or (ii) your country of residence or establishment is not in the United States, but bring any claim against ESR, LLC in the United States (to the extent not in conflict with Section 21).
18.2 Overview of Dispute Resolution Process. ESR, LLC is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 18.1 applies: (1) an informal negotiation directly with ESR, LLC’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 18 and except as provided in Section 18.6). Specifically, the Consumer Arbitration Rules provide:
- Claims can be filed with AAA online (www.adr.org);
- Arbitrators must be neutral and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy the parties could have received in court to resolve the party’s individual claim.
18.4 Agreement to Arbitrate. You and ESR, LLC mutually agree that any dispute, claim, or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement, or interpretation thereof, or to the use of the Jewel Trek Platform or the Guide Services (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and ESR, LLC agree the arbitrator will decide that issue.
18.5 Exceptions to Arbitration Agreement. You and ESR, LLC each agree the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
18.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
18.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, ESR, LLC agrees any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and ESR, LLC both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
18.8 Modification of AAA Rules - Attorney’s Fees and Costs. You and ESR, LLC agree that ESR, LLC will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines your claim was frivolous or filed for the purpose of harassment, ESR, LLC agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA Rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
18.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
18.10 Jury Trial Waiver. You and ESR, LLC acknowledge and agree we are each waiving the right to a trial by jury as to all arbitrable Disputes.
18.11 No Class Actions or Representative Proceedings. You and ESR, LLC acknowledge and agree, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and ESR, LLC both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 19.11 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 18.11 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and ESR, LLC agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.
18.12 Severability. Except as provided in Section 18.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
18.13 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if ESR, LLC changes this Section 18 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of ESR, LLC’s email to you notifying you of such change. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and ESR, LLC (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and ESR, LLC.
18.14 Survival. Except as provided in Section 18.12 and subject to Section 14.8, this Section 18 will survive any termination of these Terms and will continue to apply even if you stop using the Jewel Trek Platform or terminate your ESR, LLC Account.
19. Feedback
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Jewel Trek Platform (“Feedback“). You may submit Feedback by emailing us, through the “Contact” section of the Jewel Trek Platform, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
20. Applicable Law and Jurisdiction
20.1 If your country of residence or establishment is the United States, these Terms will be interpreted in accordance with the laws of the State of Kansas and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 18 must be brought in state or federal court in Kansas City, Kansas or Kansas City, Missouri, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Kansas City, Kansas or Kansas City, Missouri.
20.2 If your country of residence or establishment is China these Terms will be interpreted in accordance with the laws of China (“China Laws”). Any dispute arising from or in connection with this Agreement shall be submitted to the China International Economic and Trade Arbitration Commission (CIETAC) for arbitration in Beijing which shall be conducted in accordance with CIETAC’s arbitration rules in effect at the time of applying for arbitration, provided that this section shall not be construed to limit any rights which ESR, LLC may have to apply to any court of competent jurisdiction for an order requiring you to perform or be prohibited from performing certain acts and other provisional relief permitted under China Laws or any other laws that may apply to you. The arbitration proceedings shall be conducted in English. The arbitral award rendered is final and binding upon both parties.
20.3 If your country of residence or establishment is outside of the United States and China, these Terms will be interpreted in accordance with Irish law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The choice of law does not impact your rights as a consumer according to the consumer protection regulations of your country of residence. If you are acting as a consumer, you agree to submit to the non-exclusive jurisdiction of the Irish courts. Judicial proceedings that you are able to bring against us arising from or in connection with these Terms may only be brought in a court located in Ireland or a court with jurisdiction in your place of residence. If ESR, LLC wishes to enforce any of its rights against you as a consumer, we may do so only in the courts of the jurisdiction in which you are a resident. If you are acting as a business, you agree to submit to the exclusive jurisdiction of the Irish courts.
21. General Provisions
21.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines, or standards, these Terms constitute the entire Agreement between ESR, LLC and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between ESR, LLC and you in relation to the access to and use of the Jewel Trek Platform.
21.2 No joint venture, partnership, employment, or agency relationship exists between you and ESR, LLC as a result of this Agreement or your use of the Jewel Trek Platform.
21.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
21.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
21.5 ESR, LLC’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. 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 permitted under law.
21.6 You may not assign, transfer, or delegate this Agreement and your rights and obligations hereunder without ESR, LLC's prior written consent. ESR, LLC may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
21.7 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be provided electronically and given by ESR, LLC via email, Jewel Trek Platform notification, or messaging service (including SMS and WeChat).
21.8 If you have any questions about these Terms please contact us using the information found within the Jewel Trek App or on our website.