USER
TERMS OF SERVICE
Last updated: October 27, 2023
Welcome! Pickleball For America, Inc. and its affiliates, properties and property owners (collectively, “Pickleball For America”, “our”, “us”, or “we”), provide a software as a services event platform for pickleball related content, media, sporting events, clubs and tournaments accessible through our websites at https://pickle4.com, www.thepickler.com, www.pickleballden.com and www.usopenpickleball.com (the “Sites”) or the Pickleball for America applications for web, desktop, tablet, mobile and other smart devices (each, an “App”) (collectively, the “Platform”) taking place in the United States (“Events”). We require that all individuals interested in participating in Events and any end user of our website and mobile applications (each, a “User,” “you”, or “your”) adhere to the following terms and conditions of service (as they are amended from time to time) (these “Terms”). These Terms govern your access to and use of our services and any content or information contained or used therein, including by accessing the Platform, our social media channels and other platforms, any P4A Content or other User Content provided through the Platform or social media channels, any features or services offered through the Platform (including but not limited to the specific services described in Section 2), any communications sent by us or a third party on our behalf about an Event or otherwise, and any other website pages on which services are provided by us (collectively, the “Services”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES. THESE TERMS CONTAIN DISPUTE RESOLUTION PROVISIONS THAT REQUIRE YOU TO SUBMIT TO ARBITRATION, WHICH MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. BY USING THE SERVICES, YOU ARE AGREEING TO COMPLY WITH AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE SERVICES.
By accessing and using the Services, you agree, on your own behalf and on behalf of any corporation or other legal entity that you represent or for which you access the Services, to be bound by and comply with these Terms, which may be updated from time to time, and to comply with all applicable laws and regulations. Without your consent, we may change these Terms at any time, and all such changes are effective immediately upon notice, which we may give by any means, including, but not limited to, by posting a revised version of these Terms on our Platform or other notice on the Services. You should view these Terms often to stay informed of changes that may affect you. Your use of the Services after the effective date of any changes constitutes your continuing agreement to be bound by these Terms.
Our Privacy Policy available at https://www.pickle4.com/privacy-policy and any other policies, rules, or guidelines that may be applicable to particular features on the Site or are related to the Services are also incorporated into the Terms.
Separate terms and conditions (the “Organizer Terms”) apply to hosts or organizers of Events and heads of clubs or organizations that use the Platform to communicate with Users (each, an “Event Organizer”). When an individual or entity signs up as an Event Organizer we will provide, and the Event Organizer must agree to, the Organizer Terms. For the avoidance of doubt, these Terms still apply to Event Organizers to the extent and at any time that an Event Organizer is considered a User of the Services.
1. SIGNING-UP FOR AN ACCOUNT WITH US.
(a) You may need to register an account with us and become a User in order to access and use certain services and functionality of the Services. When registering for an account, you confirm that: (i) you are at least 18 years of age; (ii) you have provided us with accurate and truthful information during the registration process; (iii) you agree to comply with these Terms; and (iv) you are using our Services for private, non-commercial purposes.
(b) To create an account with us you can choose to link an existing account you have with any number of third parties including but not limited to Google, Apple, Instagram, TikTok, X (Twitter), or Facebook. If you don’t have an existing account with one of those third parties, you can register for an account by providing us with certain personal information and creating a username and password. We handle all personal information in a manner consistent with our Privacy Policy.
(c) When creating your account, you must provide accurate and complete information, and you must keep this information up to date. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You are solely responsible for the activity that occurs on your account. You may never use another User’s account without that User’s permission.
(d) You are responsible for maintaining the confidentiality of your username and password. If you believe someone has accessed your account or used our Services using your username and password without your authorization, you must inform us immediately so that we can suspend your account and you must set up a new account. We will not be liable for any losses caused by any unauthorized use of your account.
(e) When registering an account, we may ask you to select certain options indicating your preferences with regard to certain Events. We will then use this information to send you (with your consent) communications which we think are most relevant for you. You can change your preferences at any time by adjusting the preference settings on your account. Note that any changes you make to your preferences may not have immediate effect.
2. SERVICES.
(a) Use of the Services. Your access and use of the Services is subject to the compliance with these Terms and Section 4. We may make certain Services available for no cost or for an additional cost. We expressly reserve the right to make any changes to the Services that we deem appropriate from time to time and may remove or alter any particular feature of the Services. You accept that the Services and any part thereof is available on an “as is” and “as available” basis. You are only permitted to use the Services for personal, non-commercial purposes or, if you are an Event Organizer, in accordance with the Organizer Terms.
(b) Service-Specific Terms. We may include terms specific to a particular feature of the Services within these Terms or make them available to you through your access to the Platform. Such terms are incorporated herein and apply to your use of the particular Service, as applicable. Service-specific terms include but are not limited to the following:
(i) P4A Content. We may provide access to certain P4A Content that may be downloadable, free or for cost, or include content created by third-parties. Your access to and use of P4A Content is subject to your compliance with Section 4.
(ii) Scorekeeping and Interactive Features. We may or may not allow you to keep your score (whether or not as part of an Event). Event Organizers may have the ability to control scorekeeping or validate or modify your score as they deem necessary as part of an Event. We do not guarantee the accuracy or reliability of your scorekeeping. Part of our Services may also allow you to interact with other Users (including Event Organizers). You are solely responsible for your interactions with other Users of the Service. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We will have no liability for your interactions with other Users, or for any User’s action or inaction.
(iii) Event Registration Service.
(1) Event Sign Up.
a. If you would like to use the register for an Event that an Event Organizer makes available through the Platform (“Event Registration Service”), you will need to login using your account details and password. This will enable you to access the Event Registration Service. As part of the Event Registration Service, we may collect certain registration information that is required by the Event Organizer or where the Event Organizer uses a third party booking agent (“Ticket Seller”), the relevant Ticket Seller. Such information may include (but will not be limited to) name, address, contact details, date of birth, gender, previous performance information, and preferences related to the Event (“Registration Information”). To the extent you have already provided us with Registration Information for a previous Event, we may use the Registration Information you have already provided unless you indicate otherwise while you are using the Event Registration Service.
b. By using the Event Registration Service, you may be offered products and/or services related to the Event which are provided by the Event Organizer or third parties with whom the Event Organizer has a relationship, such as car parking, spectator tickets or Event merchandise (“Additional Products”).
c. Event Organizers provide us with, or publish directly onto the Services, information and content about or relating to their Events, (“Event Information”) including, but not limited to, any applicable Event Terms, Ticket Seller terms and conditions, terms relating to any Additional Products, waivers and/or other documentation or terms that you are required to accept in order to participate in the relevant Event or purchase Additional Products (“Event Terms”). We recommend that you read the Event Information and Event Terms very carefully as they will govern your participation in the Event and contain important information such as the Event Organizer’s and your rights of cancellation and your right to a refund in relation to the Event and any Additional Products you select. They will also likely contain important exclusions and limitations on the Event Organizer’s or Ticket Seller’s liability in respect of the Event and may in certain circumstances require you to waive certain rights in order to register for the Event.
(2) Submitting Orders. Your “Order” will consist of all registrations you submit to us and/or any Additional Products that you select through the Event Registration Service. Once you have provided the relevant Registration Information and indicated your agreement to the relevant Event Terms, we may act (and you hereby authorize us, on your behalf and as your agent), to submit your Order to the Event Organizer or Ticket Seller (as applicable). This includes (but is not limited to) authorizing us to do the following on your behalf:
a. submit the relevant Registration Information to the Event Organizer or Ticket Seller as applicable;
b. submit an order for any Additional Products you have selected;
c. accept the Event Terms; and
d. liaise directly with the Event Organizer in respect of the Event.
3. RESTRICTIONS ON ACCESS TO AND USE OF OUR SERVICES AND P4A CONTENT.
(a) Exceeding the scope of the use and access permission granted to you herein constitutes unauthorized reproduction, display, or creation of unauthorized derivative versions of the Services or P4A Content, and infringes our copyrights, trademarks, patents, and other rights in the Services or P4A Content. None of the P4A Content may be copied, reproduced, transmitted, stored, sold or distributed without our prior written consent or that of the relevant licensor (where relevant). You may store or print P4A Content for personal use only.
(b) You must not, and you must not permit any other person accessing or using the Services or any part thereof to:
(i) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof or the underlying structure, ideas, intellectual property, software, trade secrets, proprietary information, know-how or algorithms relevant to the Services;
(ii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any part or copy thereof;
(iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or any part thereof, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time;
(iv) use, or cause others to use, any automated system or software to extract P4A Content or data from the Services;
(v) interfere with, or disrupt, our Services or any servers or networks connected to the Services, including but not limited to by transmitting any worms, viruses, malware, spyware or any other code of a destructive, malicious or disruptive nature;
(vi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services;
(vii) inject content or code or otherwise alter or interfere with the way any page of the Services are rendered or displayed in a User’s browser or device;
(viii) access our Services via any unauthorized means, including but not limited to, automated devices, scripts, bots, spiders, crawlers or scrapers (except for standard search engine technologies);
(ix) restrict another User of our Services from using or enjoying them;
(x) copy, change, modify, create derivative works, adapt or alter the Services (or any part thereof);
(xi) change, modify or alter another website or platform so as to inaccurately imply an association with our Services or with us;
(xii) threaten, harass, abuse, slander or defame others in connection with your use of the Services;
(xiii) create, publish, distribute or disseminate any inappropriate, harmful, libelous, illegal, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable content, material or information in connection with your use of the Service or that otherwise violates the acceptable content guidelines contained herein;
(xiv) access or use the Services for the development or provision of a competing software service or product or for any other purpose that is to our detriment or commercial disadvantage;
(xv) access or use the Services or any part thereof in any manner which is illegal, harmful, offensive, obscene, or infringes on or misappropriates any intellectual property right or right of a third party or for any unauthorized purpose; or
(xvi) knowingly aid or assist or encourage any other person in taking any of the actions prohibited by this Section or breaching these Terms.
4. INTELLECTUAL PROPERTY RIGHTS; OUR CONTENT.
(a) P4A Content. In the course of providing the Services, we may display and grant you permission to access various sources of information, including but not limited to text, information, newsletters, data, databases, editorial content, graphics, design elements, images, photographs, registered and unregistered trademarks, logos, services marks, videos, sound recordings, audio and visual clips, logos, software, opportunities, features, services, P4A’s intellectual property and other materials within the Services (all such materials, and any compilation, collection, or arrangement thereof, the “P4A Content”). All P4A Content is provided to you via limited license right governed by these Terms, which I made available at our sole discretion.
(b) Our Intellectual Property. As between you and us, we will own and retain all right, title, and interest in and to (i) the Platform, Services, P4A Content, integrations, APIs, sites or other modifications or customizations of the Platform, Services, P4A Content, and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, (iii) any feedback or recommendations provided by you regarding any of the foregoing, and (iv) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Our Intellectual Property”).
(i) Ownership. Our Intellectual Property constitutes valuable proprietary information that is protected by applicable intellectual property and other proprietary rights, laws, and treaties of the United States and other countries, and that you acquire no ownership interest by accessing or using Our Intellectual Property. Such rights to Our Intellectual Property may include, but are not limited to, copyrights, trademarks, service marks, trade dress, and trade secrets, and all such rights are our property or our licensors’ property.
(ii) Assignment; License. To the extent you obtain any right, title, or interest in Our Intellectual Property, you hereby irrevocably assign and will assign to us all right, title and interest that you may have in and to any and all of Our Intellectual Property, including but not limited to all intellectual property rights therein. You will obtain, at our expense, such assignments to us from you (including as require by your representatives), as well as any other documentation and waivers of moral rights, as are necessary (or reasonably requested by us) to perfect our rights, title, interest and ownership of/in Our Intellectual Property. To the extent, if any, that any of Our Intellectual Property is not assignable or that you retain any right, title or interest in and to any of Our Intellectual Property, you (i) unconditionally and irrevocably waive the enforcement of such rights, and all claims and causes of action of any kind against us with respect to such rights; (ii) agree, at our request and expense, to consent to and join in any action to enforce such rights; and (iii) hereby grant us a perpetual, irrevocable, fully paid-up, royalty-free, transferable, sublicensable (through multiple levels of sublicensees), exclusive, worldwide right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify, make, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on our behalf) all or any portion of Our Intellectual Property, in any form or media (now known or later developed). You further irrevocably waive any “moral rights” or other rights with respect to your attribution of authorship or integrity of Our Intellectual Property under any applicable law under any legal theory.
5. USER CONTENT.
(a) As part of the Services, Users may be able to submit materials or information for publication on the Services (for example for use in their profile or as feedback on an Event (“User Content”)). User Content must meet the guidelines in Section 5(e) below.
(b) We may (but are not obligated to) moderate User Content before or after it is uploaded into the Services. We may remove or refuse to upload any User Content which does not, in our sole discretion, comply with the guidelines in Section 5(e) below.
(c) We take no responsibility and assume no liability for any User Content that you post, send, or otherwise make available over the Services. You will be solely responsible for User Content and the consequences of posting, publishing, sharing, or otherwise making it available on the Services, and you agree that we are only acting as a passive conduit for your online distribution and publication of User Content. You understand and agree that you may be exposed to other User Content or third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we will not be liable for any damages you allege to incur as a result of or relating to any such content.
(d) We make no guarantee that User Content will be kept on the Services for any length of time, and we reserve the right to remove User Content at any time as we see fit. You are urged to keep back-up copies of any of User Content submitted to us. The Services should not be used as your primary method to store or curate copies of your information, images, videos or text, as User Content may be removed permanently from the Services at any time, and we may not keep copies of User Content.
(e) Acceptable Content Guidelines.
(i) User Content must be true, accurate and not misleading.
(ii) User Content must not breach any third party rights anywhere in the world. We appreciate that you may not be an expert in intellectual property or privacy rights, but by way of example:
(1) User Content must not contain any identifiable brands or logos that you do not own;
(2) User Content must not include music, videos or pictures unless you have written or made them yourself or have a license from the person who wrote or recorded the music, videos or pictures; and
(3) If you feature any person in User Content, you must have their express written permission to use their image and/or voice. If you do not have their consent, User Content must not feature that person.
(iii) User Content must:
(1) not contain any material which is or may reasonably be considered to be threatening, defamatory, obscene, indecent, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, or in breach of confidence;
(2) not be illegal or infringe the rights of any third party, in any country in the world;
(3) not contain any representations on behalf of any third party; and
(4) make clear when it is an expression of your opinion.
(f) By uploading, submitting, posting, displaying, providing, or otherwise making available User Content on the Services, you hereby grant us an irrevocable, non-exclusive, royalty-free, perpetual, sublicensable, transferable, worldwide license to display, reproduce, modify, translate, distribute, publicly perform, publicly display, and make derivative works of all User Content and your name, voice, and/or likeness as contained therein, in whole or in part, without restriction and in any form, media or technology, whether now known or hereafter developed, including by way of example for commercial purposes in any media formats and through any media channels.
(g) For the avoidance of doubt, any other media channel not owned by us (including but not limited to social media platforms that we use or connect to) (each, a “Third Party Platform”) will have other terms which apply to User Content. You are responsible for familiarizing yourself, accepting and complying with the terms of any such Third Party Platforms.
6. PAYMENT.
(a) As part of some of the Services, you will be required to pay certain fees (including but not limited to any booking fees, payment processing fees, and other fees as may be notified to you) (the “Fees”) as we may display on the Platform or through the Services.
(b) Payment of the Fees via the Services must be made by one of the payment methods made available by the Services at that time. By submitting your credit or debit card details or, when available, your other payment details (such as for example, Apple Pay or PayPal or Stripe) (your “Payment Method”) you are representing that you are the card holder of the Payment Method, or are expressly authorized to use such Payment Method.
(c) In order to submit an Order on your behalf, you must pay the full price of the Fees directly to us, an Event Organizer or Ticket Seller (as applicable) using your selected Payment Method or we can obtain an irrevocable pre-authorization from your Payment Method for the full price of the Fees. For the Event Registration Services, once the Event Organizer or its Ticket Seller has confirmed your Order (or any part of it) a binding contract will be formed between you and the Event Organizer or their Ticket Seller, as applicable. Any refunds owed to you in connection with an Event will be subject to any relevant Event Terms.
(d) We reserve the right to cancel any Order in the event that we identify any error or inaccuracy in the description of an Event or its Fees. In such event, we will cancel such an Order and will process any applicable refund in a manner consistent with the relevant Event Terms.
7. OUR OBLIGATIONS.
(a) We are acting solely as an intermediary between you and the Event Organizer regarding an Event, and the completion of the registration process through the Event Registration Services, do not provide any guarantee that you will be able to participate in such Event or that Additional Products will be supplied. Only once we have submitted your Order and received a confirmation from the relevant Event Organizer or Ticket Seller that your Order (or any part of your Order) has been accepted will a binding contract be formed between you and the Event Organizer or Ticket Seller (as applicable). As soon as practicable after we receive a confirmation email, we will communicate this to you. If your Order or any part of it is rejected by an Event Organizer or Ticket Seller (as applicable) and such Event Organizer allows for refunds, we, the Event Organizer or Ticket Seller (as applicable) will refund to you the relevant amount of the Fees, or, if we have only taken an irrevocable pre-authorization from your Payment Method, we will cancel the relevant part of the pre-authorization and only take payment in respect of any elements of your Order which have been accepted.
(b) We may promote or refer to some Events for which the relevant Event Organizer has not signed up as an Event Organizer with us, and for which we cannot therefore offer our Event Registration Service. If you want to sign up for those Events, we will direct you to their website. We have no responsibility for these third party websites.
8. IF YOU BREACH THESE TERMS.
(a) If you are in breach of, or we suspect you are in breach of, these Terms then we may:
(i) issue a warning;
(ii) effect an immediate, temporary or permanent withdrawal of your access to the Service;
(iii) refuse to submit an Order which we have not yet accepted or submitted to an Event Organizer or relevant Ticket Seller on your behalf;
(iv) revoke an Order which we have accepted or submitted to an Event Organizer or relevant Ticket Seller on your behalf or on behalf of an Event Organizer;
(v) take legal action against you; or
(vi) disclose such information to law enforcement authorities as we reasonably feel is necessary.
(b) The actions described above in this Section are not limited or exhaustive and we reserve the right to take any other action we reasonably deem appropriate.
9. TERMINATION. In addition to the rights above in Section 8, we may terminate your access to any or all of the Services at any time, without notice, for any reason, including without limitation, breach of these Terms. We may immediately deactivate or delete your account and all related P4A or User Content and files related to your account and/or bar any further access to such files or the Services. For the avoidance of doubt, our agreement with you will terminate when you stop accessing or using the Services. All provisions of these Terms that by their nature should survive termination of your right to use the Services will survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections).
10. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
(a) Disclaimer of Warranties.
(i) USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND P4A CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT WARRANT THAT ANY P4A OR USER CONTENT ON THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES IS FREE OF VIRUSES, ERRORS OR OTHER HARMFUL COMPONENTS. ANY P4A OR USER CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
(ii) WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY (OR EVENT ORGANIZER) THROUGH THE SERVICES, ALL OF WHICH ARE AVAILABLE “AS-IS” AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. SOME EVENTS MAY CARRY INHERENT RISK, SUCH AS ILLNESS, BODILY INJURY, DISABILITY, OR DEATH, AND YOU FREELY AND WILLFULLY ASSUME THOSE RISKS BY CHOOSING TO PARTICIPATE IN THOSE EVENTS.
(b) Limitation on Liability.
(i) IN NO EVENT WILL WE, OUR AFFILIATES, OUR LICENSORS, OR OUR EVENT ORGANIZERS, SUPPLIERS, ADVERTISERS, AND SPONSORS (AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LEGAL REPRESENTATIVES AND SUB-CONTRACTORS), BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE (AS PERMITTED BY APPLICABLE LAW), OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, USE, DATA, OR OPPORTUNITY, INTANGIBLE LOSSES OR THE COST OF SUBSTITUTE SERVICES, AND ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, P4A OR USER CONTENT, OR ANY PRODUCT OR SERVICES PURCHASED THROUGH THE PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT, OR OTHER LEGAL OR EQUITABLE THEORY. WITHOUT LIMITING THE FOREGOING, WE WILL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR (a) ANY FAILURE OF ANOTHER USER OF THE SITE TO CONFORM TO THE TERMS, (b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER ARISING IN CONTRACT OR IN TORT, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES, (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS (OR THIRD PARTY SERVICES) AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (d) ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, DEFECTS, DATE BOMBS, TIME BOMBS, OR OTHER ITEMS OF A DESTRUCTIVE NATURE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE, OR (e) ANY ERRORS, MISTAKES, INACCURACIES, OR OMISSIONS IN ANY CONTENT. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(ii) TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR AGGREGATE LIABILITY ARISING OUT OF THE TERMS OR OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES WILL NOT EXCEED THE LESSER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS.
(iii) You acknowledge and agree that the information contained on the Services is for information purposes only and does not constitute advice. You should check any information on the Services and use your own judgment before doing or not doing anything on the basis of what you see.
(iv) You acknowledge that as part of the Services we may recommend certain Events for you. These recommendations are based on the preferences you have selected as part of your account and are not based on your actual level of fitness. You are therefore responsible for determining whether you are able to compete in any Event (whether or not we have recommended it) and we will not be responsible if you compete in an Event which is beyond your capability.
(v) We are not the Event Organizer of the Events and have no control over the Event organization. We will not be liable to you for any injury, damage or loss you suffer as part of you participating in the Event or otherwise in connection with Event (including any breach by the Event Organizer or Ticket Seller of the relevant Event Terms).
(c) Indemnity. You agree to defend, indemnify and hold us and our subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services or any Events, including any of Your or P4A Content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties herein; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account, including without limitation misleading, false, or inaccurate information; and (vi) your gross negligence and willful misconduct. We reserve the right to take exclusive control and defense of any claim, and you will cooperate fully with us in asserting any available defenses.
11. LINKS TO THIRD PARTY WEBSITES. The Services may include links to third party websites that are controlled and maintained by others. We strongly encourage you to become familiar with the terms of use and practices of any linked website. Your use of other websites is at your own risk, and is subject to the terms of those websites.
12. TRANSFER OF RIGHTS AND OBLIGATIONS. You may not transfer, assign, charge or otherwise dispose of any rights or obligations arising under it or in connection with these Terms, without our prior written consent. Any attempted transfer, assignment, charge or other disposal in violation hereof will be null and void. You agree that we may, without restriction, transfer, assign, charge or otherwise dispose of any rights, licenses or obligations arising under it or in connection with these Terms.
13. RELATIONSHIP OF PARTIES. No independent contractor, agency, partnership, joint venture or other such relationship is created by these Terms. These Terms do not confer any rights, remedies, or benefits upon any person other than you.
14. GOVERNING LAW. These Terms and any claim or dispute arising out of or relating to these Terms or their subject matter will be governed by and construed exclusively in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules, except as otherwise provided in Section 18.
15. COPYRIGHT INFRINGEMENT. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent. You must provide the following information in writing:
(a) An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
(b) Identification of the copyrighted work that you claim has been infringed;
(c) Identification of the material that is claimed to be infringing and where it is located on the Service;
(d) Information reasonably sufficient to permit us to contact you, such as 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 law; and
(f) A statement made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner. The above information must be submitted as follows:
Attn: Copyright Infringement Notice
Pickleball for America Copyright Manager
Pickleball for America, Inc.
4915 Rattlesnake Hammock Rd.
Suite 157
Naples, FL 34113
Phone: 617.249.3712
Email: legal@pickle4.com
(g) UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. For residents of California, the provider of services is set forth herein.
16. DISPUTE RESOLUTION; MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
(a) WE AND YOU MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY CLAIM OR DISPUTE AGAINST EACH OTHER ON AN INDIVIDUAL BASIS IN ARBITRATION, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 18 (“ARBITRATION AGREEMENT”). THIS WILL PROHIBIT YOU AND US FROM BRINGING ANY CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS AGAINST EACH OTHER, AND THE PARTIES MUTUALLY WAIVE ANY RIGHTS TO BRING SUCH ACTIONS.
(b) We are available by email at legal@pickle4.com to address any concerns you may have regarding the Services or these Terms. Most concerns may be quickly resolved in this manner. We and you agree to use commercially reasonable efforts to address and resolve any dispute, claim, question or disagreement directly through consultation and good faith negotiations which will be a precondition to either party initiating a lawsuit or arbitration.
(c) If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated pursuant to the Section above, then either party may initiate binding arbitration.
(d) Notwithstanding any other provision in these Terms, this Arbitration Agreement will not require arbitration of the following types of claims: (i) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction, (ii) injunctive or other equitable relief to prevent the actual or threatened infringement, misappropriation or violation of a party’s confidentiality rights or copyrights, trademarks, trade secrets, patents or other intellectual property rights, and (iii) claims that may not be subject to arbitration as a matter of generally applicable law.
(e) All claims arising out of or relating to these Terms (including their formation, construction, validity, interpretation, performance and enforceability), the parties’ relationship with each other and/or the Services or P4A or User Content will be finally settled by binding arbitration administered by the American Arbitration Association (the “AAA”) on a confidential basis in accordance with the provisions of its Commercial Arbitration Rules then in effect, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) will govern its interpretation and enforcement.
(f) EACH PARTY WILL BE RESPONSIBLE FOR ITS OWN FEES AND COSTS IN CONNECTION WITH THE ARBITRATION. YOU ARE RESPONSIBLE FOR YOUR OWN ATTORNEYS’ FEES; WE WILL NOT PAY ANY ATTORNEYS’ FEES UNLESS ORDERED TO DO SO BY THE ARBITRATOR. FOR THE AVOIDANCE OF DOUBT, IN CASES WHERE A STATUTE GIVES YOU THE RIGHT TO RECOVER ATTORNEYS’ FEES IF YOU PREVAIL, THE ARBITRATOR MAY AWARD ATTORNEYS’ FEES PURSUANT TO THAT STATUTE.
(g) THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL, AND, THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAT IN COURT.
(h) A party that seeks to initiate arbitration must provide the other party with a written Demand for Arbitration, as specified in the AAA Rules. The arbitration will be overseen by one (1) arbitrator, who will be either (1) a retired judge or (2) an attorney licensed in the state of Florida, selected by the parties (or appointed by AAA if the parties cannot agree) from AAA’s roster of commercial dispute arbitrators. The arbitration will be conducted in Tampa, Florida, and claims that do not exceed $10,000 will be conducted solely on the basis of documents submitted by the parties. By entering into this agreement, the parties submit to such jurisdiction and venue.
(i) CLASS ACTION AND CLASS ARBITRATION WAIVER. THE PARTIES FURTHER AGREE THAT ANY ARBITRATION WILL BE CONDUCTED IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER COLLECTIVE OR REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT PRESIDE OVER ANY FORM OF CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING AND MAY ONLY PROVIDE RELIEF IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
(j) In the event that any provisions of this Section are found to be invalid or unenforceable for any reason, (i) the unenforceable or invalid provision will be severed from this Arbitration Agreement, (ii) the remainder of the Arbitration Agreement will be given full force and effect, and (iii) severance of the unenforceable or invalid provision will have no impact on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis; provided that severance will not result in severing the Class Action and Class Arbitration Waiver in Section 16(i) in any manner that permits mass arbitration, to which the parties expressly do not consent.
17. NOTICES.
(a) All notices given by you to us must be given to the following:
Email: legal@pickle4.com
Address: Pickleball for America, Inc.
4915 Rattlesnake Hammock Rd.
Suite 157
Naples, FL 34113
(b) We will provide notice to you via the Platform or at either the email or postal address you provide to us when you set up your account.
(c) Notice will be considered properly delivered at the time when we post it on the Platform, 24 hours after an email is sent, or three days after the date of sending a letter or delivering via nationally recognized overnight courier, provided in each case that delivery in fact is effected. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to, and received by, the specified email address of the addressee.
18. MISCELLANEOUS. If any term of these Terms are found by any court or arbitrator to be void or otherwise unenforceable, the remainder of these Terms will remain valid and enforceable as though such term were absent upon the date of the execution of these Terms. Headings are for reference purposes only and do not limit the scope or extent of such section. Any failure by you or us to enforce any provision of these Terms will not constitute a waiver of such provision or of any other provision of these Terms. Except as otherwise expressly provided in these Terms, there will be no third-party beneficiaries to these Terms. These Terms and our Privacy Policy constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements between you and us with respect to the Services. No joint venture, partnership, employment, or agency relationship exists between you and us as a result of these Terms or your access to and use of the Services. You are responsible for obtaining access to the Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment necessary to access the Services. Your rights and duties under these Terms are not assignable by you without our written consent and any prohibited assignment is null and void. These Terms will inure to the benefit of, and are intended to be enforceable by, the parties and their respective successors and assigns. Any provision of these Terms that imposes or contemplates continuing obligations on you or us will survive the expiration or termination of these Terms.