Last Updated: April 15, 2018
TERMS OF SERVICE AGREEMENT
Welcome to 18Birdies, which is operated by 18Birdies, LLC (“18Birdies”, “we”, “us” or “our”). Please read these Terms of Service (“Agreement”) carefully, as it constitutes a legally binding agreement between you and 18Birdies. This Agreement applies to and governs your use of (a) www.18Birdies.com and all corresponding subdomains, web pages and websites associated with the foregoing URL (the “Site”), (b) the 18Birdies app (the “App”), (c) 18Birdies Business Accounts and (d) any other content, applications, systems, features, functionality, software, information, products and services offered by us that link to this Agreement (collectively the “Services”). By using the SITE, AP OR Services, DOWNLOADING THE APP, COMPLETING THE REGISTRATION PROCESS AND/OR CLICKING THE “I ACCEPT” BUTTON, you understand, acknowledge and agree that (i) you have read and agree to be bound by this Agreement and (ii) you are of legal age to form a binding contract with 18Birdies.
You use of, and participation in, certain Services may be subject to additional terms (“Additional Terms”), and such Additional Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the additional Service. To the extent that there is a conflict between this Agreement and the Additional Terms, the Additional Terms shall govern.
PLEASE BE AWARE THAT SECTION 18 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT 18BIRDIES’ THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 13.
1. Term. This Agreement shall commence as of the date you accept it (in accordance with the preamble) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the terms herein. You may terminate your use of or registration for the Services at any time by closing your User Account (as defined below) and notifying us of your intent to terminate. 18Birdies may terminate your use of or registration for the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party, including in the event you have breached this Agreement, or if we are required by applicable law.
2. Modifications. We may modify this Agreement from time to time, and at any time, for any reason, in our sole discretion. If we modify this Agreement, we will provide notice on the Site and within the App. We may also send you notice to the email address you provided. You are solely responsible for providing us with an accurate and up to date email address. In certain circumstances, we may require you to provide additional consent before any further use of the Site, App or Services is permitted. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
3. Compliance. By using the Services, you represent and warrant that (a) you are 13 years of age or older and reside in the United States of America, its territories and possessions (the “U.S.”) and acknowledge and agree that features, activities and other aspects of the Services may be subject to heightened age and/or other eligibility requirements (e.g., purchases, contests, sweepstakes, promotions, rewards programs, etc.); (b) your use of the Services does not violate any applicable law, rule or regulation; and (c) you shall make timely and satisfactory payment for any Services purchased by you. If you provide information that is untrue, inaccurate, not current or incomplete, or 18Birdies suspects that such information is untrue, inaccurate, not current or incomplete, 18Birdies has the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in its sole discretion, with or without notice to you, and without liability or obligation to you.
4. User Registration. In order to access and use the Services, we may require that you register for an account (“User Account”) and create a unique username and password combination (“User Credentials”) and provide certain additional information, as prompted by our user registration flow. You represent and warrant that all registration and account information you submit is truthful and accurate and you shall maintain and promptly update the accuracy of such information. You may only have one User Account and are responsible for maintaining the strict confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials or the device you use to access and use the Services (a “Device”), whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any feebased transactions. It is therefore critical that you do not share your User Credentials with anyone. You agree to immediately notify 18Birdies of any unauthorized use of your User Credentials, User Account and/or Device, or any other breach of security, including, without limitation, in the event your Device is lost or stolen. It is your sole responsibility to (a) control the dissemination and use of your User Credentials, User Account and Device, (b) update, maintain and control access to your User Credentials, User Account and Device, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to anyone if we believe there is a question about the identity of the person trying to access any account or element of the Services. 18Birdies shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 4.
5. Third Party Platforms. Some of the Services may be dependent on and/or interoperate with thirdparty owned and/or operated platforms and services (e.g., Facebook, Twitter, Google Play, PayPal, LinkedIn, Apple, etc.) (each, a “Third Party Platform”) and may require that you be a registered member of such Third-Party Platforms and provide certain account credentials and other information in order to access such Services. Such Third Party Platforms, in addition to providing application hosting, content distribution, support and other related services, may provide us with certain additional information about you. No Third-Party Platform through which you purchase the Services shall furnish any maintenance or support with respect to the Services, nor shall they address any third-party claims related to your use of the Services.
7. Proprietary Rights.
7.1. License. Subject to your compliance with this Agreement, 18Birdies grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single Device that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
7.2 Ownership. As between you and 18Birdies, 18Birdies owns, solely and exclusively, all right, title and interest in and to the Site, App and Services and all content contained and/or made available on, through or in connection therewith (“Content”), and the Site, App, Services and Content are protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, rules, regulations and treaties.
7.3. Restrictions. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Site, Application, or Services, including, without limitation, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by 18Birdies and set forth in Additional Terms (e.g., Services that allow for the use of embeddable or viral features, applications, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any the Application or any Content without the express, prior written consent of 18Birdies or its owner if 18Birdies is not the owner. Moreover, the framing or scraping of or inline linking to the Site, Services or any Content contained thereon and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Content made available on or through the Services other than as expressly authorized by us is writing in advance is prohibited. You further agree to abide by exclusionary protocols (e.g., Robots.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services.
8. User Conduct. You are solely responsible for your conduct in connection with the Services. We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is not allowed. You represent, warrant and agree that, while using the Services, you shall not:
8.1 intentionally or unintentionally engage in or encourage conduct that would violate any applicable local, state, national or international law, rule, regulation, judicial or government order or treaty or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
8.2 submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that: (i) is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity; (iii) contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (iv) is false, incorrect, misleading, fraudulent, exaggerated or inaccurate data or information, including, without limitation, as it pertains to any golfrelated conduct, activities, achievements, initiatives, promotions, and/or opportunities (e.g., golf rounds played, scores obtained, participating golfers, etc.);
8.3 intentionally or unintentionally engage in or encourage conduct that affects adversely or reflect negatively on 18Birdies or its affiliates, or any of their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, advertisers, suppliers, operators or service providers, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourages any person or entity from using all or any portion, features or functions of the Services, or from advertising, linking or becoming a supplier to us in connection with the Services;
8.4 use the Services for commercial or business purposes, including, without limitation, engaging in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Services, whether or not for financial or any other form of compensation or through linking with another website or web page;
8.5 modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other User;
8.6 impersonate any person or entity, including, without limitation, a 18Birdies official, or falsely state or otherwise represent your affiliation with a person, entity or User Posting (as defined herein), transmit or otherwise make available on, through or in connection with the Services false or misleading indications of origin, information or statements of fact;
8.7 forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services, including User Postings (as defined herein);
8.8 solicit passwords or personal identifying information for commercial or unlawful purposes from other Users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of Users or other information;
8.9 modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so;
8.10 sell, gift, trade, or otherwise transfer any virtual currency associated with your User Account, including Golf Bucks, to anyone;
8.11 use the Services in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or
8.12 use the services if you are on any U.S. Government list of prohibited or restricted parties.
9. Investigations. 18Birdies reserves the right to investigate and take appropriate legal action against anyone who, in 18Birdies’s sole discretion, violates, or is suspected of violating, this Agreement, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that 18Birdies may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with the legal process; (ii) enforce this Agreement; (iii) respond to claims that any content or information violates the rights of any third party; (iv) respond to your requests for customer or technical service; or (v) protect the rights, property or personal safety of 18Birdies, Users or any third parties. 18Birdies also reserves the right to remove the Services from Third Party Platforms, which would limit your ability to re-download the Services.
10. Export. You may not use, export, import, or transfer the Application except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Application, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by 18Birdies are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer 18Birdies products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
11. User Postings.
11.1. Defined; Acknowledgements. The Services may provide you and other users with an opportunity to participate in feeds, forums, communities and other message, comment and communication features and functionalities and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available comments, reviews, links, materials, ideas, opinions, messages, user information and other information via the Services (each, a “User Posting”, and collectively, “User Postings”). The term “User Posting” also includes all of the information you submit or we may receive that is related to your User Posting. When you submit User Postings you may also be asked to provide information about you and your submission. This may include, without limitation, such things as your User Credentials, a descriptive title, information about the User Posting, your location and/or similar information. You further acknowledge and agree that all User Postings made by means of or in connection with any portion of the Services are public and that (a) you have no expectation of privacy in any User Posting, and (b) no confidential, fiduciary, contractually implied or other relationship is created between you and 18Birdies by reason of your transmitting a User Posting to any area of or in connection with the Services.
11.2. Responsibility; Liability. You understand, acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, upload, post, email, display, transmit or otherwise make available. User Postings do not reflect the views of 18Birdies, its affiliates or any of their respective successors and assigns, directors, officers, employees, representatives or agents, and you understand that by using the Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, 18Birdies does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall 18Birdies be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
11.3. Usage; Restrictions. The Services, including, without limitation, all User Posting features and functionality, is for personal purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Posting that we deem to be an Unauthorized Posting (as defined herein). We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that 18Birdies shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Posting” means any User Posting that is or may be construed as violating this Agreement, including, without limitation, Section 8 herein, or is deemed to be unacceptable to 18Birdies or affiliates for any reason, as determined in 18Birdies’s sole discretion.
11.4. License; Usage. In connection with all User Postings you submit, post, email, display, transmit or otherwise make available, you grant to 18Birdies the unqualified, unrestricted, unconditional, unlimited, worldwide, nonexclusive, irrevocable, perpetual and royaltyfree right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Posting on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sublicense and authorize others to exercise any of the rights granted hereunder to 18Birdies, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to 18Birdies shall commence immediately upon submission of your User Posting and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered User or not.
11.5. Rights; Representations. 18Birdies does not acquire any title or ownership rights in the User Postings that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein.
11.6. California Removal Rights. Registered Users of Services who are California residents and are under 18 years of age may request and obtain removal of User Postings located on the Services that they themselves post by emailing us at: posting_removal@18Birdies.com. All requests must be labeled “California Removal Request” on the email subject line. All requests must provide a description of the content or information in your User Posting that you want removed and information reasonably sufficient to permit us to locate the material and, so that we can process your request and contact you if we have questions, include your registered username, name, street address, city, state, zip code and email address (your street address is optional if you wish to receive a response to your request via email), include the name and URL (if applicable) of the website, application or other interactive service and indicate your preference on how our response to your request should be sent (email or postal mail). We shall not accept requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, or may not be able to respond if you do not provide complete information. We may also provide you the ability to remove individual specific User Postings that are comments by navigating to the comment, selecting the delete option when you hover over the right-hand side of the comment with your cursor and verifying the deletion request. Please also note that any requests for removal do not ensure complete or comprehensive removal of the Content or information from the Services. For example, content that you have posted may be republished or reposted by another User or third party.
12. Digital Millennium Copyright Act.
If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
Written notification of claimed infringement must be submitted to the following Designated Agent: Name and Address of Designated Agent:
Attention: DMCA Copyright Agent
505 14th Street, Suite 330, Oakland, CA 94612
Email Address of Designated Agent: copyright@18Birdies.com
For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to 18Birdies customer service by sending an email to support@18Birdies.com. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 12, your DMCA notice may not be valid.
13. Payment, Pricing, and Related Terms of Service.
13.1. FeeBased Services. We may make available certain feebased transactions, content and other ecommerce services, including, without limitation, the ability to purchase goods and services, on and/or in connection with the Services (“FeeBased Services”). For example, you may be able to order certain golfrelated products, services and/or licenses through the Services, including, without limitation, additional Service features and functionality. Additional Terms may apply to your use of, access to and purchase of FeeBased Services and such Additional Terms are incorporated herein by reference. You may only use the FeeBased Services if, and you hereby represent, warrant and agree that (a) you are 18 years of age or older and a legal resident of U.S. and (b) you shall pay in full the prices and fees, including, without limitation, all applicable taxes (as more fully described below) for any purchases you, or anyone using the User Account registered to you, make via an Authorized Payment Method (as defined below).
13.2. Payment Method and Terms. For App purchases, you will be charged at confirmation of purchase. For auto-renewing subscriptions, you will be charged within 24-hours prior to the end of the current period. The Services accept certain methods of payment which will be indicated at the time of purchase as forms of payment (each, an “Authorized Payment Method”), subject to certain restrictions, including, without limitation, territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your order. If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another Authorized Payment Method. If a payment card company is being used for a transaction, 18Birdies may obtain a preapproval from the applicable payment card company for an amount up to the amount of the order. All purchases are final once you click the “Submit” or similar button/link and billing to your payment card occurs at such time or shortly thereafter. If payment is not received by us from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us. 18Birdies reserves the right to change any and all prices for any Services and other Content at any time, for any reason.
13.3. Auto Renewal. Your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at 18Birdies’ then-current price for such subscription. You agree that your User Account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) one (1) day prior to the Renewal Commencement Date (or in the event that you receive a notice from 18Birdies that your subscription will be automatically renewed, you will have thirty days from the date of the 18Birdies notice), by logging into and going to the “Account Type” section within your “Account Settings” page, located on your profile (the “Me” tab). If you do not wish your User Account to renew automatically, or if you want to change or terminate your subscription, you will do so via your “Account Settings” page under “Account type.” From here you can access the app store through which you registered. Please contact 18Birdies at support@18Birdies.com with questions. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize 18Birdies, including any payment processors, to charge you now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if 18Birdies does not receive payment from you or from a payment processor, (i) you agree to pay all amounts due on your User Account upon demand, and/or (ii) you agree that 18Birdies may either terminate or suspend your subscription and continue to attempt to charge you or a payment processor on your behalf until payment is received (upon receipt of payment, your User Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
13.4. Taxes. You are responsible for any taxes imposed on any feebased transactions conducted on or in connection with the Services and applicable taxes will be added to the amount charged for the applicable transaction. Feebased transactions in connection with the Services may include, without limitation, sales tax, use tax and any other applicable taxes, which may be based on various factors, including, without limitation, the billto address and tax rates in effect at the time your transaction is completed. No customers or users are eligible for tax exemptions for transactions made in connection with the Services.
13.5. Additional Terms and Conditions. 18Birdies may revise any or all of the fees and prices associated with the FeeBased Services at any time for any or no reason. Further, 18Birdies does not guarantee that product descriptions or other content and products will be available, accurate, complete, reliable, current or errorfree. Descriptions and images of, and references to, products or services on or in connection with the FeeBased Services do not imply 18Birdies’s or any of its affiliates’ endorsement of such products or services. Moreover, 18Birdies and its third party operational service providers reserve the right, with or without prior notice, for any or no reason, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); and/or to refuse to provide any user with any product. Further, if 18Birdies terminates your use of or registration to the Services because you have breached this Agreement, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration.
13.6. Golf Bucks. Users may accrue virtual currency known as Golf Bucks and associate Golf Bucks with their User Accounts. Golf Bucks have no monetary value and have no value outside of the Services. Golf Bucks may only be redeemed on the Services for limited purposes, including but not limited to entries for certain Promotions. Refer to the terms and conditions for each Promotion for further details on Golf Bucks redemption. Golf Bucks do not expire. You may not sell Golf Bucks in exchange for real money or exchange those items for value outside of the Services. Golf Bucks remain the property of 18Birdies and 18Birdies reserves the right to manage, regulate, control, modify or eliminate Golf Bucks at its own discretion. 18Birdies will not be liable to you or required to provide refunds, benefits, or other compensation in connection with unredeemed Golf Bucks. If your Account is terminated for any reason, you may lose all Golf Bucks associated with your User Account.
13.7 Third Party Payment Processors. 18Birdies uses Stripe, Inc. to process payments. Stripe, Inc. may receive personal information from you. You are bound by the Stripe Connected Account Agreement, which can be found here: https://stripe.com/us/connect-account/legal
13.8 Disputes. If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the FeeBased Services, you must promptly notify 18Birdies customer service of such complaint or dispute by sending a detailed email to support@18Birdies.com.
14. Customer Support. For assistance, questions or complaints please contact:
18Birdies Customer Support
505 14th Street, Suite 330
Oakland, CA 94612
15. Indemnity. You agree to defend, indemnify and hold 18Birdies and its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, suppliers and service providers (the “18Birdies Parties”) harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising in any way out of or in connection with (a) your use of the Services, (b) your breach or violation this Agreement or (c) your User Postings. 18Birdies reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with 18Birdies’s defense of such Claim. This provision does not require you to indemnify the 18Birdies Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site, Application or any Services provided hereunder.
16.1 Generally. THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THIS SITE, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS ARE HEREBY DISCLAIMED. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, User Postings and Content associated with your use of the Services.
16.2 Third Party Products and Services. WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD PARTY SERVICE PROVIDERS OR OTHER WEB SITES, WEB PAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES), AND ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. YOU ACKNOWLEDGE AND AGREE THAT PRODUCT/SERVICE SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY THE APPLICABLE THIRD-PARTY VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES AND WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OF THESE THIRD PARTIES AS SAME IS CONDUCTED AT YOUR SOLE RISK. FURTHER, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION) YOU MIGHT BE REQUESTED TO GIVE ANY SUCH THIRD PARTY, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US OR OUR AFFILIATES WITH RESPECT TO ANY SUCH TRANSACTION. WE ARE NOT RESPONSIBLE FOR ASSISTING YOU IN CORRECTING ANY PROBLEM YOU MAY EXPERIENCE WITH GOODS AND SERVICES PURCHASED THROUGH A THIRD-PARTY SERVICE PROVIDER, EVEN IF THE GOODS OR SERVICES ARE ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCTS OR SERVICES THAT YOU PURCHASE FROM ANY THIRDPARTY OPERATIONAL SERVICE PROVIDER AS THOSE ARE OWNED AND OPERATED BY INDEPENDENT ENTITIES. CUSTOMER SERVICE ISSUES RELATED TO GOODS OR SERVICES SHOULD BE DIRECTED TO THE RELEVANT THIRD PARTY OPERATIONAL SERVICE PROVIDER.
16.3 No Warranty of Timeliness or Availability. You further understand and acknowledge the capacity of the Services, in the aggregate and for each user, is limited. Consequently, some messages and transmissions, including, without limitation, User Postings, may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that 18Birdies assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or User Postings or for any failure or delay associated with any User Postings and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or User Postings. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
17. Limitation of Liability. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, 18BIRDIES, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES. IN NO EVENT SHALL 18BIRDIES’ LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF: (A) THE AMOUNTS PAID BY YOU DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER; OR (B) $1,000 USD.
18. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with 18Birdies and limits the manner in which you can seek relief from us.
18.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site, to any products sold or distributed through the Site, the Application, Services, or to any aspect of your relationship with 18Birdies, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or 18Birdies may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
18.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to 18Birdies, 505 14th Street, Suite 330, Oakland, CA 94612. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
18.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and 18Birdies. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
18.4 Waiver of Jury Trial. YOU AND 18BIRDIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and 18Birdies are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in New York County, New York. All other claims shall be arbitrated.
18.6 Severability. Except as provided in subsection 18.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
18.7 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with 18Birdies.
19.1. Final Agreement; Severability; Survival; Waiver. This Agreement contains the entire understanding and agreement between you and 18Birdies concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of 18Birdies to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
19.2. Governing Law and Venue. This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York for any claims that cannot be resolved in accordance with Section 18 and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
19.3. Notice. Where 18Birdies requires that you provide an e-mail address, you are responsible for providing 18Birdies with your most current e-mail address. In the event that the last e-mail address you provided to 18Birdies is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to 18Birdies at the following address: 505 14th Street, Suite 330, Oakland, CA 94612. Such notice shall be deemed given when received by 18Birdies by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
19.4 Assignment. This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by 18Birdies without restriction, notice or other obligation to you.
19.5 App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that this Agreement is between you and 18Birdies and not with the App Store. 18Birdies, not the App Store, is solely responsible for the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce it.
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