TERMS OF USE
LAST UPDATED AND EFFECTIVE: 9/16/2020
NO PAYMENT OR PURCHASE NECESSARY TO PLAY, ENTER OR WIN. MAKING A PURCHASE OR PAYMENT OF ANY KIND WILL NOT AFFECT THE LIKELIHOOD OF WINNING. PRACTICE OR SUCCESS AT FREE-TO-PLAY CONTESTS DOES NOT IMPLY FUTURE SUCCESS AT REAL MONEY GAMBLING. VOID WHERE PROHIBITED OR RESTRICTED BY LAW.
1. Introduction
Chirp Golf provides customers with the ability to create, access, and use accounts (each, an “Account”) to play certain games or contests within Chirp Golf. Please read these Terms of Service closely for restrictions on your use of an Account.
These Terms of Service (“Agreement”) is an agreement between you (“you” or “User”) and Boom Golf LLC (“Sponsor” and together with its parents, subsidiaries, affiliates, members, developers, and partners, the “Company”, “we”, or “us”). This Agreement governs the creation of, use of and access to your Account, your access and use of Chirp Golf, and your ability to compete in any games or contests within Chirp Golf, including receipt of any prizes awarded (collectively, the “Services”). As used herein, “Chirp Golf” shall include all related web pages, interactive features, applications, widgets, blogs, call center, and mobile applications, and their respective contents, whether accessed via computer, mobile device, or other technology.
By using the Services, you agree to be bound by the terms and conditions contained in this Agreement. If you do not agree to the terms and conditions contained in this Agreement, you may not access or otherwise use the Services. In addition, you may choose to compete in certain games, contests, sweepstakes or similar promotions within the Services (each a “Contest”) corresponding to various, real-world golf matches or other events that will be offered subject to additional guidelines, policies and rules separate from and in addition to this Agreement (collectively, “Contest Rules”) posted and in effect at the time of the Contest. By choosing to compete in any such Contest, you acknowledge and agree that your participation is subject to the applicable Contest Rules. The Company urges you to read the applicable Contest Rules in advance of entering each Contest. Moreover, the availability of the Services, your Account, and each Contest are subject, at all times, to applicable law in all respects as in effect from time-to-time.
Sponsor may make changes to the content and Services at any time. Sponsor can change, update, or add or remove provisions of this Agreement, at any time by posting the updated Agreement on the Services or by notifying you via any other method of communication provided. By using the Services after Sponsor has updated this Agreement, you are agreeing to all the updated terms; if you do not agree with any of the updated terms, you must stop using Services.
NOTICE REGARDING DISPUTE RESOLUTION: This Agreement contains provisions that govern how claims you and we have against each other are resolved (see Section 15 below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against the Company to binding arbitration, unless you opt-out in accordance with Section 15 below.
2. Privacy
Use of the Services is subject to the terms of our Privacy Policy, which is hereby incorporated into and made part of this Agreement. Please carefully review our Privacy Policy, which is available by clicking here. By using the Services, you acknowledge that you have read, and you agree to be bound by, the terms of our Privacy Policy. We reserve the right, and you authorize us, to use information regarding your use of the Services, account registration, and any other personal information provided by you in accordance with our Privacy Policy. You further acknowledge and agree that any disputes related to the Privacy Policy, including any breaches in security or privacy, will be subject to the limitations on liability and dispute resolution provisions contained in this Agreement.
3. Eligibility for the Services
Eligibility for the Services is limited to legal residents of the United States and the District of Columbia who are 21 years of age or older, and who are located in the United States or the District of Columbia at the time of playing any game within the Services. Notwithstanding that individuals need not wager or risk any funds to play, enter or win games or contests within the Services, individuals enrolled in any self-exclusion list or other exclusion list where individuals named therein are prohibited from gambling or wagering (in one form or another) are not eligible to participate. Employees, directors and officers of (x) the Company and each of our contractors, distributors, sales representatives, retailers, and advertising agencies and all other service agencies involved with the Services (including Boom Fantasy, 530 7th Avenue, New York, NY 10018), (y), The PGA of America (“PGA”), and its parent(s), subsidiaries, affiliates and each of their respective shareholders, members, successors, and agents, and (z) members of the immediate family (spouse, parent, child, sibling and their respective spouse) and household of each foregoing individual are not eligible to participate. Moreover, you are not eligible for the Services if: (a) by virtue of your affiliation or employment with another company operating in the fantasy sports or sports gaming industry, you have access to that company’s pre-release, non-public, or confidential data or other information that is not available to all other Users that may provide you an advantage in any individual Contest; or (b) you are a PGA official, owner, employee, player, caddie, or any other individual that participates in PGA-sanctioned events and/or whose conduct may influence the outcome of any applicable PGA event.
By entering into this Agreement, you certify that (i) you are fully able and competent to enter into this Agreement, and (ii) you are eligible for the Services as set forth above. If you are accessing the Services from a mobile device, you also may be required to turn on location services on your mobile device and for the mobile application. Individual games or contests within the Services may have additional eligibility restrictions, requirements to enter the game or contest, and/or conditions to receive a prize. We reserve the right to verify your eligibility at any time. We further reserve the right to limit or terminate the availability of the Services or deny you access to the Services without further notice to you and in the Company’s sole discretion.
4. Account Creation and Closure
You are required to establish an Account and are limited to only one Account in order to take advantage of certain features of the Services, including playing any game within the Services. This Account is limited to your personal use and may not be accessed by, used by, transferred to, or assigned to any other person. When providing information on the Services or otherwise to the Company, you agree to provide true, accurate, current and complete information about yourself requested by the Company.
When establishing your one and only Account, you must:
Read and agree to abide by all of the terms and conditions set forth in this Agreement, which will be available to you during the Account creation process;
Provide all requested personal information;
Establish the required Account information, as may be required from time-to-time, including a unique username and password; and
Consent to the monitoring and recording of any game play and geographic location information by the Company.
You are responsible for maintaining the confidentiality of the Account information that you may create and you further agree to safeguard your Account and mobile devices from any unauthorized use by other individuals.
Simply deleting the mobile application on your mobile device will not close your Account. Instead, you may close your Account by contacting customer support and any unissued prizes for which all prize conditions have been satisfied when you contact Customer Service to close your Account will be remitted to you. In the event that there is no activity within your Account for one (1) full calendar year, we reserve the right to close or suspend Inactive Accounts. Any unissued prizes for which all prize conditions have been satisfied shall be treated as provided by applicable law, which may include reporting the funds as abandoned and remitting the funds to the applicable governmental authority to receive abandoned or unclaimed funds.
5. Fraudulent Activities; Prohibited Transactions
If, in our sole determination, you are found to have cheated, colluded with any other User or Users, engaged in any fraudulent or unlawful activity, or otherwise attempted to defraud us or other Users (including, without limitation, by means of game manipulation or predicting all possible outcomes) or if we suspect you of any of the foregoing, the Company has the right, in its sole discretion, to suspend or close your Account, void and withhold any or all winnings from such activities, void and withhold any player ratings and/or recover winnings from such activities using whichever method may lawfully be available to the Company.
6. Tax Reporting and Withholding
Your use of the Services is subject to compliance with applicable U.S. tax reporting and withholding laws as in effect from time-to-time. You acknowledge and agree that the Company must and is hereby authorized to report and/or withhold your winnings in accordance with U.S. tax reporting and withholding laws as in effect from time-to-time. All winnings subject to reporting and/or withholding may be withheld by the Company and/or reported to the U.S. Internal Revenue Service on such form as may be required for tax purposes. You hereby irrevocably authorize us to file all required reports regarding your winnings from using the Services with the U.S. Internal Revenue Service and any other applicable taxing authority. In addition to any withholding by us, you may be subject to additional income withholding requirements based on the applicable law in your state of residency. You are solely responsible for any taxes incurred in connection with winnings on the Services. You agree to indemnify and hold harmless the Company for any claims, demands, liens, or judgments based on your non-payment or underpayment of such taxes.
7. Connectivity; Communications
You must have an internet-enabled mobile device using either the iOS or Android operating system in order to access the Services, the use of which is subject to your acceptance and compliance with the End User License Agreement. The End User License Agreement for the iOS operating system can be found here.The End User License Agreement for the Android operating system can be found here. Normal carrier charges and taxes may apply to any content you obtain from the Services. The Company is not responsible for any surcharges you incur from your mobile or internet service provider as a result of the use of the Services
8. Copyright; Trademarks
You acknowledge that all materials on the Services, including the Services’ design, graphics, text, sounds, pictures, software and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of the Company or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. You will not obtain any ownership interest in the Materials or the Services through this Agreement or otherwise. All rights to Materials not expressly granted in this Agreement are reserved to their respective copyright owners. Except as expressly authorized by this Agreement or on the Services, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of the Company or the respective copyright owner. The Company authorizes you to view and download the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. You may not modify or adapt the Materials in any way or otherwise use them for any public or commercial purposes. The trademarks, service marks, trade names, trade dress and logos (collectively, “Marks”) contained or described on the Services are the sole property of the Company, and may not be copied, imitated or otherwise used, in whole or in part, without the prior written authorization of the Company. In addition, all page headers, custom graphics, button icons and scripts are Marks of the Company and may not be copied, imitated or otherwise used, in whole or in part, without the prior written authorization of the Company. The Company will enforce its intellectual property rights to the fullest extent of the law.
9. User Content And Conduct
Where applicable at the Services (e.g., on message boards), you are invited to select your own username and/or post your own content (collectively, “User Content”). You understand that all User Content, whether you have publicly posted on a forum, posted as part of your profile, or privately transmitted to another User or to us, is your sole responsibility. Though the Services are designed to be a safe place to share such User Content, the Company cannot guarantee that other Users will not misuse the User Content that you share. If you have any User Content that you would like to keep confidential and/or do not want others to use (including but not limited to, photos, personal information, name, home address, telephone number, etc.), do not post it to the Services. Under no circumstances will the Company be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed or otherwise transmitted via the Services. THE COMPANY IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT YOU POST TO THE SERVICES.
By posting any User Content at the Services, you hereby grant the Company a royalty-free, fully paid up, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, combine with other works, create derivative works from, distribute, perform, edit and display such User Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. You specifically waive any “moral rights” in and to the User Content. The foregoing grant includes, without limitation, any copyrights and other intellectual property rights in and to your User Content. You represent and warrant that: you own the User Content posted by you on or through the Services or otherwise have the right to grant the license set forth in this Agreement; and the posting of your User Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content you posted to or through the Services.
You acknowledge and agree that the Company may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process; enforce this Agreement; respond to claims that any User Content violates the rights of third-parties; or protect the rights, property, or personal safety of the Company, its users and the public. You understand that the technical processing and transmission of the Services, including your User Content, may involve: transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices.
You agree to each of the conditions in this Agreement and further agree that each of these conditions applies forever and broadly with regard to the Company worldwide. Posting of User Content to or through the Services, including ideas or disclosures of opinions, is voluntary on your part. No confidential or additional contractual relationship is established by your posting of User Content or is to be implied by our review or subsequent use of your User Content. The Company shall not be liable for any disclosure of any User Content, including opinion(s) or suggestion(s), which you post to or through the Services. THE COMPANY SHALL BE ENTITLED TO UNRESTRICTED USE OF ANY USER CONTENT IT MAY RECEIVE FROM YOU AT OR THROUGH THE SERVICES, FOR ANY PURPOSE WHATSOEVER, COMMERCIAL OR OTHERWISE, WITHOUT COMPENSATION TO YOU AS PROVIDER OF THE USER CONTENT.
You agree that you will not use the Services to:
upload, post, email or otherwise transmit any User Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise unlawful or objectionable (including without limitation, nudity and depiction of drug use);
harm minors in any way;
impersonate any person or entity, including, but not limited to a representative of the Company, or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Services;
upload, post, email or otherwise transmit any User Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, post, email or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas that are designated for such purpose;
upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, emulate, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
“stalk” or otherwise harass another;
collect or store personal information or data about other Service users, or disclose another user’s personal information or data to any third party;
solicit personal information or data from anyone; and/or
“bot,” “hack,” “crack,” or otherwise attempt to circumvent any access control, copyright protection or license-enforcement mechanisms associated with or related to the Services.
You understand that by using the Services, you may be exposed to User Content created by others that is offensive, indecent or objectionable. The Company does not endorse or have control over what is posted as User Content. User Content is not reviewed by the Company prior to posting and does not reflect the opinions or policies of the Company. The Company makes no representations or warranties, express or implied, as to the User Content or the accuracy and reliability of the User Content or any other material or information that you may access through the Services. The Company assumes no responsibility for monitoring the Services for inappropriate submissions or conduct, but reserves the right to do so. If at any time the Company chooses, in its sole discretion, to monitor the Services, the Company nonetheless assumes no responsibility for the User Content, has no obligation to modify or remove any inappropriate User Content, and has no responsibility for the conduct of the Services users submitting any such User Content.
Notwithstanding the foregoing, the Company and its designees shall have the right to remove any User Content at any time, without notice and for any reason, including but not limited to, content that violates this Agreement or is otherwise objectionable, in the Company’s sole discretion. You agree that you must evaluate and bear all risks associated with the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. The Company may store User Content indefinitely. However, the Company has no obligation to store User Content or make it available to you in the future.
You are solely responsible for your interactions with other Service users. The Company reserves the right, but has no obligation, to monitor disputes between you and other Service users. The Company reserves the right to terminate your Services access if the Company determines, in its sole discretion, that doing so is prudent.
Any comments, suggestions, or feedback relating to the Services (collectively “Feedback”) submitted to the Company shall become the property of the Company. The Company will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, product, application, website, Services or advertising ideas) and will not incur any liability as a result of any similarities that may appear in the Services, or operations, in the future. Without limitation, the Company will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback. You acknowledge that you are responsible for whatever material you submit, and you, not the Company, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
10. Service Usage
You agree to use the Services only for lawful purposes, and that you are responsible for your use of and communications on the Services. You agree not to communicate on or transmit through the Service any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes others’ intellectual property rights or otherwise violates any applicable local, state, national or international law. You agree not to use the Services in any manner that interferes with its normal operation or with any other user’s use and enjoyment of the Services.
You further agree that you will not access the Services by any means except through the interface provided by the Company for access to the Services. Creating or maintaining any link from another website or application to any page or functionality on the Services without the prior written authorization of the Company is prohibited. Running or displaying the Services or any information or material displayed on the Services in frames or through similar means on another website or application without the prior written authorization of the Company is prohibited. Any permitted links to the Services must comply with all applicable laws, rules, and regulations.
The Company makes no representation that Materials contained on the Services or products described or offered on the Services are appropriate or available for use in jurisdictions outside the United States, or that this Agreement complies with the laws of any other country. Visitors who use the Services and reside outside the United States do so on their own initiative and are responsible for compliance with all laws, if and to the extent local laws are applicable. You agree that you will not access the Services from any territory where its contents are illegal, and that you, and not the Company, are responsible for compliance with applicable local laws.
11. Termination of Usage
This Agreement is effective unless and until terminated by either you or the Company. You may terminate this Agreement at any time, provided that you discontinue any further use of the Services. The Company also may terminate or suspend this Agreement or your access to all or part of the Services, at any time, without notice and accordingly deny you access to the Services, for any reason, including without limitation, if in the Company’s sole discretion you fail to comply with any term or provision of this Agreement or your use is harmful to the interests of another user or the Company. Upon any termination of the Agreement by either you or us, you must promptly uninstall any mobile applications you obtained through the Services and destroy all materials downloaded or otherwise obtained from the Services, as well as all copies of such materials, whether made under the Agreement or otherwise. In the event any Account is inactive for a period of at least 6 months, the Company reserves the right to terminate such Account.
The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Except as otherwise expressly stated in this Agreement, you agree that the Company, PGA and each of their respective Affiliated Parties (as defined below) shall not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services.
This Section, Sections 13 (Disclaimer; Limitation of Liability), 14 (Indemnification), 15 (Applicable Law; Jurisdiction; ARBITRATION; Dispute Resolution) and any other provision(s) of this Agreement that expressly or by implication remains in effect following the termination of this Agreement shall survive any termination of this Agreement.
12. Links; Third Party Websites
Links on the Services to third party websites and applications from time-to-time may be provided as a convenience to you. If you use these links, you will leave the Services. Your dealings with third parties through links to such third party websites or applications are solely between you and such third parties. You agree that the Company and its Affiliated Parties (as defined below) will not be responsible or liable for any content, goods or services provided on or through these outside websites or applications or for your use or inability to use such websites or applications. You use these links at your own risk. You are advised that other websites on the Internet and mobile applications, including third party websites and applications linked from the Services, might contain material or information that some people may find offensive or inappropriate; or that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. The Company expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website or application.
Without limiting the foregoing, your correspondence or business dealings with, participation in promotions of or purchases from, advertisers or third party applications found on or through the use of the Services, including payment for and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party application provider. You agree that the Company and its Affiliated Parties (as defined below) shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third party application providers on the Services.
13. Disclaimer; Limitation Of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE COMPANY, ITS OTHER AFFILIATED COMPANIES AND THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND OTHER REPRESENTATIVES, THE COMPANY’S VENDORS AND BUSINESS PARTNERS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, SUCCESSORS, AND AGENTS (COLLECTIVELY, “THE COMPANY, AND EACH OF ITS RESPECTIVE AFFILIATED PARTIES” OR “AFFILIATED PARTIES”). EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE COMPANY, AND EACH OF ITS RESPECTIVE AFFILIATED PARTIES MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, OR MOBILE DEVICE OR FOR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY, AND EACH OF ITS RESPECTIVE AFFILIATED PARTIES OR ON OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
ALL SERVICES AND PRODUCTS PURCHASED AND OBTAINED ON OR THROUGH THE SERVICES ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS, AND/OR SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY, AND EACH OF ITS RESPECTIVE AFFILIATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES, WITH RESPECT TO THE PRODUCTS AND SERVICES (INCLUDING SERVICES OR THIRD PARTY APPLICATIONS) LISTED OR PURCHASED ON OR THROUGH THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT OR SERVICE DEFECT OR FAILURE, SERVICE OR PRODUCT MISUSE, SERVICE OR PRODUCT ABUSE, SERVICE OR PRODUCT MODIFICATION, IMPROPER SERVICE SELECTION AND NON-COMPLIANCE WITH ANY WRITTEN DIRECTIONS.
AT TIMES, YOU MAY EXPERIENCE DIFFICULTY ACCESSING THE SERVICES OR COMMUNICATING WITH THE COMPANY THROUGH THE INTERNET OR OTHER ELECTRONIC WIRELESS SERVICES AS A RESULT OF HIGH INTERNET TRAFFIC, TRANSMISSION PROBLEMS, SYSTEMS CAPACITY LIMITATIONS, OR OTHER PROBLEMS. ANY COMPUTER SYSTEM OR OTHER ELECTRONIC DEVICE, WHETHER IT IS YOURS, AN INTERNET SERVICE PROVIDER’S, OR THE COMPANY'S, CAN EXPERIENCE UNANTICIPATED OUTAGES OR SLOWDOWNS OR HAVE CAPACITY LIMITATIONS. THE COMPANY MAKES NO WARRANTY WHATSOEVER TO YOU, EXPRESS OR IMPLIED, REGARDING THE AVAILABILITY OF THE INTERNET OR CELL OR DATA SERVICE ON YOUR DEVICE.
THE COMPANY, AND EACH OF ITS RESPECTIVE AFFILIATED PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING ANY LIABILITY (I) AS A PUBLISHER OF INFORMATION; (II) AS A RESELLER OF ANY PRODUCTS OR SERVICES; (III) FOR ANY DEFECTIVE PRODUCTS OR SERVICES; (IV) FOR ANY INCORRECT OR INACCURATE INFORMATION, (V) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA, (VI) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, OR (VII) FOR ANY OTHER MATTER RELATING TO THE SERVICES OR ANY THIRD PARTY WEBSITE OR APPLICATION. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. THE PRODUCTS, THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE COMPANY, AND EACH OF ITS RESPECTIVE AFFILIATED PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY PRODUCT, INFORMATION OR SERVICE PURCHASED BY YOU FROM THE COMPANY ON THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID THE COMPANY ANY AMOUNTS FOR ANY PRODUCTS, INFORMATION OR SERVICE PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT ANY CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY IS TO STOP USING THE SERVICES AND CANCEL YOUR ACCOUNT. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
14. Indemnification
You agree to indemnify, defend and hold harmless the Company, and each of its respective Affiliated Parties against all claims, demands, causes of action, losses, expenses, damages and costs, including any reasonable attorneys’ fees, resulting or arising from or relating to your use of or conduct on the Services, any activity related to your account by you or any other person, any material that you submit to, post on or transmit through the Services, your breach of this Agreement, your infringement or violation of any rights of another, or termination of your access to the Services.
15. Applicable Law; Jurisdiction; ARBITRATION; Dispute Resolution
(a) U.S. Site. The Services are controlled and operated by the Company from within the United States of America, and are intended for use only by residents of the United States. The Company makes no representations or warranties that the content or materials of the Services are appropriate or lawful in any foreign countries, or that any items or applications offered for sale or download through links on the Services will be available outside the United States. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You may not use or export or re-export any content downloaded from the Services or any copy or adaptation of such content, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
(b) Governing law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the state of New York, as it is applied to agreements entered into and to be performed entirely within such state, without regard to conflict of law principles.
(c) Initial Dispute Resolution. We are available by email at support@getchirpgolf.com to discuss any concerns you may have regarding your use of the Services. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
(d) Binding Arbitration Agreement. IF THE PARTIES DO NOT REACH AN AGREED UPON SOLUTION WITHIN A PERIOD OF THIRTY (30) DAYS FROM THE TIME INFORMAL DISPUTE RESOLUTION IS PURSUED PURSUANT TO THE PARAGRAPH ABOVE, THEN EITHER PARTY MAY INITIATE BINDING ARBITRATION ON AN INDIVIDUAL (NON-CLASS) BASIS. THE PROCEDURES AND RULES OF THE FEDERAL ARBITRATION ACT (“FAA”), 9 U.S.C. §§ 1 et seq., SHALL EXCLUSIVELY GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION AGREEMENT.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY AGREEMENT, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE THE DISPUTE RESOLVED BY A JUDGE OR JURY. THEY FURTHER UNDERSTAND 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 THAN IN COURT. THIS ARBITRATION PROVISION ALSO CONTAINS A CLASS ACTION WAIVER.
(e) Claims Subject to Arbitration. All past, present and future claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration. The arbitration shall be administered by the American Arbitration Association (the “AAA”), 120 Broadway, Floor 21, New York, NY 10271, in accordance with the provisions of its Commercial Arbitration Rules and/or its Consumer Arbitration Rules, excluding any rules or procedures permitting class actions. If for any reason the AAA cannot administer the arbitration and the parties cannot agree on a replacement, a court with jurisdiction shall select the arbitration organization or arbitrator. “Claim” has the broadest possible meaning. It includes initial claims, counterclaims, cross-claims, third-party claims, and federal, state, local, and administrative claims, and claims which arose before the effective date of this arbitration provision. It also includes disputes based upon contract, tort, consumer rights, fraud, and other intentional torts, constitution, statute, regulation, ordinance, common law and equity, and claims for money damages and injunctive or declaratory relief. “Claim” also includes data breach or privacy claims arising from or relating directly or indirectly to the disclosure by us of any non-public personal information about you. This arbitration provision may also be enforced by any party named as a co-defendant with the Company in a claim asserted by you.
(f) Delegation Clause. Notwithstanding the foregoing, claims or disputes about the validity, enforceability, coverage or scope of this arbitration provision or any part thereof (including, without limitation, this sentence, the Class Action Waiver in this Section 15(i) and the Severability clause in Section 15(j)), or whether a party has waived the right to arbitrate through litigation conduct or otherwise are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of this Agreement as a whole is for the arbitrator, not a court, to decide.
(g) Arbitration Procedures. The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. The arbitrator shall be empowered to grant whatever substantive relief would be available in a court under applicable law or in equity on an individual claim, including, without limitation, compensatory, statutory, and punitive damages (which will be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive, and other equitable relief, and attorneys’ fees and costs. The arbitrator shall apply applicable statutes of limitations and privilege rules that would apply in a court proceeding. The arbitration hearing will take place in the federal district where you reside, or at another place mutually agreeable to the parties. The arbitrator’s award shall be binding on the parties, except for any appeal rights under the FAA, and may be entered as a judgment in any court of competent jurisdiction. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this arbitration provision. This arbitration provision shall survive termination or breach of this Agreement, termination of the Services or your account and any bankruptcy. If there is a conflict between the arbitration provision, on the one hand, and this Agreement or the AAA’s rules, on the other hand, this arbitration provision shall control.
(h) Arbitration Costs. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of filing fees should be submitted to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary filing fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The parties will bear their respective attorney, expert, and witness fees and costs, unless applicable law or the AAA rules provide otherwise. We will always pay fees and costs that are required by law or that are necessary to make this arbitration provision enforceable.
(i) Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action, private attorney general action or other representative action, and the parties expressly waive their right to file or participate in a class action, private attorney general action or other representative action or seek relief on a class basis in court or in arbitration.
(j) Severability. If any portion of this arbitration agreement is deemed invalid or unenforceable, it shall not invalidate the Agreement or the remaining portions of this arbitration agreement, except that: (i)The parties acknowledge that the Class Action Waiver in Section 15(i) is material and essential to the arbitration of any disputes between them and is non-severable from this arbitration provision. If the Class Action Waiver in Section 15(i) is limited, voided or found unenforceable, and all appeals from that determination have been exhausted, then this arbitration provision (except for this sentence) shall be null and void with respect to such proceeding. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and (ii) If a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver in Section 15(i) or elsewhere in this arbitration agreement prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case, the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated.
(k) 30 Day Right to Opt Out. You have the right to opt-out and not be bound by this arbitration agreement set forth in the preceding paragraphs by sending written notice of your decision to opt-out to the following address: Boom Golf LLC, 6 E. 43rd Street New York, NY 10017. The written notice must include your name, mailing address, and the email address you used to create the account via the Services and it must be sent within thirty (30) days of the creation of an account via the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of this arbitration agreement, we also will not be bound by this arbitration agreement. Opting out of arbitration will not affect any other term of this Agreement.
(l) Exception – Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. However, if the dispute is transferred, removed, or appealed to a different court, the dispute will be subject to arbitration.
(m) Exclusive Venue for Litigation. Solely to the extent the arbitration agreement set forth above does not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in the federal district court for the Southern District of New York, or, if federal subject matter jurisdiction is lacking, then in the state courts located in New York, New York. The parties expressly hereby consent to exclusive jurisdiction in the aforesaid courts for any litigation, hereby also consent to personal jurisdiction in said courts for any litigation and waive, for all purposes, their right to challenge the lack of personal jurisdiction said courts over any litigation arising in connection with, out of, or as a result of (a) this Agreement or the Services, and (b) any acts or omissions of the Company in connection with this Agreement or the Services.
(n) One Year Time Limit. The parties agree to commence any arbitration proceeding (or court action if applicable) with respect to this Agreement within one year after the claim arises. We agree that a proceeding commenced after this date is barred.
16. Severability; Interpretation
Except as set forth in the arbitration agreement set forth above, if any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions shall not be affected. When used in this Agreement, the term “including” shall be deemed to be followed by the words “without limitation.”
17. Filtering
Pursuant to 47 U.S.C. Section 230 (d) as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protection is available at http://www.staysafeonline.org.
18. Entire Agreement
This Agreement, including the Privacy Policy and other policies incorporated herein, constitutes the entire and only Agreement between the Company and each user of the Services with respect to the subject matter of this Agreement, and supersedes any and all prior or contemporaneous Agreements, representations, warranties and understandings, written or oral, with respect to the subject matter of this Agreement.
19. Miscellaneous
The failure of the Company to insist upon strict adherence to any term of this Agreement shall not constitute a waiver of such term or limit that party’s right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
You agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose, or will be forever barred. Sections 11 (Termination of Usage), 13 (Disclaimer; Limitation of Liability), 14 (Indemnification), 15 (Applicable Law; Jurisdiction; ARBITRATION; Dispute Resolution) and any other provision(s) of this Agreement that expressly or by implication benefit the Company, and each of its respective Affiliated Parties are for the benefit of the Company, and each of its respective Affiliated Parties, and each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
20. Contact Information for Customer Support
If you have any comments, questions or complaints regarding this Agreement or the Services or wish to report any violation of this Agreement, please contact us at hello@getchirpgolf.com.
21. Gambling Problems
The Services are being provided for promotional and entertainment purposes only. Nothing of value can be wagered or risked on or through the Services. Nonetheless, if you have concerns about gambling – or if you are concerned about a friend or family member – information and resources to help combat problem gambling are available from the National Council on Problem Gambling, Gam-Anon, or Gamblers Anonymous. For additional information or resources relating to problems with gambling, please visit the websites for the National Council on Problem Gambling, Gam-Anon, or Gamblers Anonymous.
If you or someone you know has a gambling problem, call 1-800-GAMBLER.