TERMS OF USE
These Terms of Use shall apply to any and all services available on or through the Eutaw Street Rport (ESR) Services, Hub or Portal (the “Services”). By accessing and/or using the Services, you are expressly agreeing to comply with and be bound by the following Terms of Use, ESR ’s Privacy Policy accessed through our web Services under link Privacy Policy (the “Privacy Policy”), and any other policies, rules or guidelines that may be applicable to Services on the Services (“Additional Terms and Conditions”), as well as all applicable laws and regulations. ESR are collectively referred to herein as “we,” “us” or “our.” “You,” or “your,” refers to you, a user of the Services or parent or legal guardian (over the age of 18) if such user is a minor in his or her state of residence.
If there is difference between these Terms of Use and the Additional Terms for a tournament, camp, membership, training video ticket, license, transaction, sale and/or any other activity for which you are using these Services to register or make a purchase (each, a “Purchase”), the Additional Terms of use shall govern. These Terms of Use will remain in full force and effect as long as you are a user or member of the Service and in the event of termination of any membership or service you will still be bound by your obligations under these Terms of Use.
ESR may revise and update these Terms of Use at any time; you need to periodically review them, because your usage of our Services demonstrates your agreement with any such changes. Changes we make will be effective immediately, which we will provide by any means including, without limitation, posting a revised version and date of these Terms of Use of Services. When we make any significant changes to these Terms of Use, we will inform you when practical, in advance of such change, by sending an email to you at the email address that you have registered with us.
When you use the Services, you certify that (i) you are a resident of the United States and are at least 13 years of age or, if under the age of 13, your parent has consented to your use of the Services by providing Purchase Profile details (ii) you are not a resident of the United States and are at least 18 years of age or, if under the age of 18, you have the consent of your parent or guardian (over the age of 18) to use the Services by providing Purchase Profile details. You also certify that you are not a person barred from receiving Services under the laws of the United States or other applicable jurisdiction
The information and Content provided on or through the Services, including any information, data, text, designs, graphics, images, photographs, illustrations, clips, logos, icons and links (collectively, the “Content”) are owned exclusively by ESR or its licensors, and are intended to be used as Content solely for your personal, non-commercial use. As long as you comply with all other Terms of Use, we grant you a limited license to use the Content for your personal use only; provided that you may not reproduce or distribute. It shall also be known by you, all rights not specifically granted in the license set forth above shall be reserved and remain always with ESR. Use of the Services and Content for any purpose other than as expressly authorized in these Terms of Use is a violation of our copyrights and other proprietary rights, and is strictly prohibited.
The Services, including all Services software, databases, coding, technology and Content (any intellectual property and other rights relating contained therein) including, without limitation, the “look and feel” and Services and Content layout, is owned and operated by ESR. You acknowledge that the Services is protected by copyright, trademark and other laws (no ownership rights by using the Services or the Content are extended to any party.
The trademarks, logos, and service marks displayed on the Services (collectively the “Trademarks”) are the registered and unregistered trademarks of ESR and ESR’s advertisers, licensors, suppliers and others. The Trademarks owned by ESR, whether registered or unregistered, may not be used in connection with any product or service that is not offered by ESR, in any manner that is likely to cause confusion with customers, or in any manner. Nothing contained on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of ESR, ESR’s licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and ESR will aggressively enforce its intellectual property rights in such Trademarks.
You may have fundamentally fair use of Trademarks owned by ESR in advertising and promotional Content, and in referring to ESR’s products and services without ESR’s permission, provided you follow standard trademark usage practices and provide proper attribution to ESR. Other uses that are not “fundamentally fair use” require written permission from ESR. Please make such requests by email to ad***@ma************.com.
Registration.
You may browse the Services and view content without registering, but as a condition to using certain aspects of our Services, you may be required to register with ESR and select a password and user name (your “registration”). You are responsible for maintaining the confidentiality of your registration. You shall not (i) select or use as your registration a name of another person with the intent to impersonate that person; (ii) use as your registration a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as your registration a name that is otherwise offensive, vulgar or obscene.
You shall be responsible for all uses of your registration, whether or not authorized by you. You will immediately notify ESR, in writing, of any unauthorized use of your account, or other account related security breach of which you are aware. You also agree to: (i) provide true, accurate, current and complete information about yourself as submitted to ESR, and (ii) maintain and promptly update your registration information to keep it accurate, current and complete. If you do not comply ESR has the right to immediately suspend or terminate your account and refuse any and all current or future use of our Services. Registration data and certain other information about you are subject to the Privacy Policy.
ESR hereby grants you a non-exclusive right to access and use the Services and Services solely for your personal, non-commercial use, and to search for, view, register for, and interact with, Camps and Tournaments that are listed on the Services, provided that you comply with these Terms of Use.
ESR is not liable for any harm caused or related to the theft or misappropriation of your user name or password due to your failure to protect identity. If you have reason to believe that your account with us is no longer secure, you must promptly change your password and immediately notify us of the problem by contacting us at ad***@ma************.com. In the event of any dispute between two or more parties as to account ownership, you agree that ESR will be the sole arbiter of such dispute in its sole discretion and that ESR’s decision (which may include termination or suspension of any account subject to dispute) will be final and binding on all parties.
User Content Behavior. In connection with User Content and your use of the Services, you agree that you will not, nor permit anyone else to, indirectly or directly:
submit information that includes non-public personal or identifying information about another person without that person’s explicit written consent;
upload, post or otherwise make available any User Content that you do not have a right to make available under any law;
make available any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
access or attempt to access parts of our Services that you are not authorized by ESR, breach any security or password protection on the Services, access the Services by any means other than through the interface provided by ESR;
impersonate any person or entity, whether actual or fictitious, including any representative of ESR;
modify any software or database software for the Services in any manner;
use our Services to harm minors in any way;
engage any spamming or email exercise or load other Content that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature;
remove any copyright, trademark or other proprietary rights notices contained on the Services;
use any robot, bot, spider, offline reader, Services search/retrieval application or other manual or automatic device to retrieve, index, data mine, scrape or in any way reproduce our databases, files or otherwise;
collect information about Services visitors or members without their express consent;
The foregoing actions shall constitute a material breach of these Terms of Use.
You acknowledge, consent and agree that ESR may access, preserve and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with laws, rules, regulations, or legal process; (b) enforce these Terms of Use; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of ESR, its users and the public.
You understand that the technical processing and transmission of the Services, including your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Services and software embodied within the Services may include security components that permit digital Content to be protected, and that use of this Content is subject to usage rules set by ESR and/or content providers who provide content to the Services. You may not attempt to override or circumvent any of the usage rules embedded into the Services. Any unauthorized reproduction, publication, further distribution or public exhibition of the Content provided on the Services, in whole or in part, is strictly prohibited.
Should you choose to submit any ideas, suggestions, documents, and/or proposals (“Submissions”) to ESR through any of its media, you acknowledge and agree that: (a) your Submissions do not contain confidential or proprietary information; (b) ESR is not under any obligation of confidentiality, express or implied, with respect to the Submissions; (c) ESR shall be entitled to use or disclose (or choose not to use or disclose) such Submissions for any purpose, in any way, in any media worldwide; (d) ESR may have something similar to the Submissions already under consideration or in development; (e) your Submissions shall automatically become the property of ESR without any obligation of ESR to you; and (f) you are not entitled to any compensation or reimbursement of any kind from ESR under any circumstances.
Purchasing. If you wish to purchase products or services or register for an Camp, Tournament or Training Ticket described on the Services (each, a “Transaction”), you will be asked to supply certain information applicable to your Transaction, including, without limitation, credit card and other information. You understand that any such information will be treated by ESR in the manner described in our Privacy Policy. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your Transactions. In addition to these Terms of Use, your Transaction shall be subject to any Additional Terms applicable to such services, features or purchases. Registration may be regulated by certain state, county and city laws or regulations. You acknowledge that complying with laws is your responsibility, and YOU AGREE NOT TO HOLD US LIABLE FOR YOUR FAILURE TO COMPLY WITH ANY LAW OR OUR FAILURE TO NOTIFY YOU OF, OR PROPERLY APPLY, ANY LAW. WE WILL COMPLY WITH LAW ENFORCEMENT AND MAY PROVIDE THEM WITH ALL INFORMATION YOU SUBMIT TO US TO ASSIST IN ANY INVESTIGATION OR PROSECUTION THEY MAY CONDUCT. You represent and warrant that all information you provide, including but not limited to all information concerning your name, address, credit card number, and other identifying information of any nature will be true, complete and correct, and that you will update all information as it changes. You agree that you will only use credit cards belonging to you or for which you are expressly authorized to use. You further agree that you will not attempt to conceal your identity by using multiple Internet Protocol (“IP”) addresses or email addresses. You grant ESR the right to provide any information you submit to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
Descriptions or images of, or references to, third party products or services do not imply ESR’s endorsement of such products or services. We reserve the right, without prior notification, to change such descriptions or references; to honor, or impose conditions on the honoring of, any promotional code or other similar promotions; to bar any user from making any or all Transaction(s); to limit the order quantity on any product or service; and/or to refuse to provide any user with any product or service. Verification of information applicable to a purchase may be required prior to ESR’s acceptance of any order. Price and availability of any product or service are subject to change without notice.
If we are unable to verify or authenticate any information you provide during any registration, ordering, purchase, sale, authentication, delivery, payment or remittance process, or any other process, or if we are no longer able to verify or authorize your credit card or bank account information, your registration may be cancelled, we may refuse to honor all pending and future purchases made on such credit card accounts and/or on any online accounts associated with such credit card accounts, and you may be prohibited from using the Services.
Charges and Billing. The Services may require payment of access fees. By registering for the Services, you hereby authorize ESR to charge your credit card in advance for all applicable fees incurred by you in connection with your chosen service, purchase or registration for your account. You hereby understand and agree that in most cases, ESR will be charging your designated credit card in accordance with the payment schedule of the Service for which you have registered, but some service fees may accumulate on your credit card account before they are actually charged to your credit card. You further understand and agree that it is your responsibility to notify ESR of any changes to your credit card or if your credit card has expired, otherwise your access to the Service may be disconnected or interrupted. You shall additionally be responsible for and shall immediately pay ESR, on demand, any payments that are made to us that are subject to an unjustified, subsequent reversal. All fees shall be paid in U.S. dollars.
ESR reserves the right to change any fees (which includes but is not limited to, charging a fee for packages, options, upgrades and/or a Service for which ESR does not currently charge a fee) or billing methods at any time, provided, however, that such modifications shall not take effect earlier than thirty (30) days after ESR posts such modification on the Services. ESR also has the right to collect applicable taxes and impose premium surcharges for some areas of the Service and these surcharges may apply immediately after you register for the associated service. You may cancel your account or any associated optional or upgraded services therefore at any time, but ESR will not refund any remaining portion of your pre-paid fees and you may be charged an additional cancellation fee.
You agree to pay your account balance on time. You also agree to pay any taxes, including sales or use taxes, resulting from your Transaction or use of the Service. Amounts not paid by you to ESR when due will be assessed an additional 1.5% (or the highest amount allowed by law, whichever is lower) per month if your payment is more than thirty (30) days past due. That amount is also due immediately. You are responsible and liable for any fees, including attorneys’ and collection fees, that ESR may incur in its efforts to collect any remaining balances due from you. These Terms of Use shall in no way limit any other remedies available to ESR. You also understand and agree that you will be billed for and will pay any outstanding balances if you cancel your account or your account is terminated. You must notify ESR of any billing problems or discrepancies within sixty (60) days after they first appear on your credit card account statement. If you do not notify ESR within sixty (60) days, you waive any right to dispute such problems or discrepancies.
Parties other than ESR provide services, or sell products or access to their Events on the Services. You may order services or merchandise through the Services from other persons not affiliated with ESR (“Seller”). All matters concerning the merchandise and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and Seller. ESR makes no warranties or representations whatsoever with regard to any goods or services provided by Sellers. You will not consider ESR, nor will ESR be construed as, a party to such transactions, whether or not ESR may have received some form of revenue or other remuneration in connection with the transaction. You agree that ESR will not be liable for any costs or damages arising out of such transactions, either directly or indirectly. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals. ESR does not assume any responsibility or liability for the actions, product or content of all these and any other third parties.
Information Provided by ESR. Although ESR strives to provide Content that are both useful and accurate, the nature of the data and other information contained on the Services are subject to frequent change. In addition, the facts and circumstances of every situation differ. Accordingly, although ESR endeavors to use reasonable care in assembling the Content, the Content may not be up-to-date, accurate or complete.
In addition, portions of the Content have been contributed to the Services by various sports information directors, writers, coaches, fans, sports teams and other persons. The inclusion of such information does not indicate any approval or endorsement thereof, and ESR expressly disclaims any liability with respect to the foregoing.
Links. As a convenience to our members, we may provide links to third-party web Services. If you use these links, you will leave the Services. Your dealings with third parties through links to such third party web Services or applications are solely between you and such third party. Unless otherwise explicitly stated, ESR is not responsible for the content, goods or services provided on or through such web Services, any updates or changes to such Services, for your use or inability to use such Services, or the privacy or other practices of such Services, and the fact that ESR offers such links does not indicate any approval or endorsement of any material contained on any linked Services. The linked Services are not under our control, and we make no representations as to the quality, suitability, functionality or legality of any Services to which we may provide links. ESR 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 web Services or application. You hereby completely and irrevocably release and forever discharge us from and waive any claim you might have against ESR with respect to such Services.
ESR and/or third parties may, from time to time, send email messages to you containing advertisements, promotions, etc. pursuant to our Privacy Policy. ESR makes no representation or warranty with respect to the content of any such email messages or any goods or services which may be obtained from such third parties, and you agree that neither ESR nor such third party shall have any liability with respect thereto.
YOU AGREE THAT YOUR USE OF INTERNET WEB SERVICES AND RESOURCES NOT CONTROLLED BY ESR, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER CONTENT ON OR AVAILABLE THROUGH SUCH WEB SERVICES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SERVICES AND RESOURCES.
Access By Minors. ESR encourages parents to use appropriate parental discretion in determining whether to grant authorization to minor children to access the Services. 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
Rules for Gear Giveaways, Contests and Other Games. In addition to these Terms of Use, any gear giveaways, contests, games or similar promotions (collectively, “Promotions”) made available through the Services may be governed by specific rules that are separate from these Terms of Use. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions set forth herein. ESR urges you to review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to these Terms of Use, governs any information you submit in connection with such activities. To the extent such rules conflict with these Terms of Use, such rules shall control with respect to the particular Promotion. modify any software for the Services in any manner or form, nor use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Services;
Termination. These Terms of Use shall remain effective until terminated in accordance with its terms. We reserve the right to immediately terminate these Terms of Use, and/or your access to and use of the Services or any portion thereof, at any time and for any reason, with or without cause, including but not limited to repeated unauthorized postings of copyrighted works.
Violators of Terms of Use; Injunctive Relief, and Liquidated Damages. Violations of these Terms of Use, including unauthorized use of the Services, may be investigated and appropriate legal action may be taken, including without limitation civil, criminal and injunctive redress. You understand and agree that in ESR’s sole discretion, and without prior notice, ESR may terminate and block your access to the Services or to ESR’s other services, cancel your event registration, refuse to honor pending and future purchases made from all credit card accounts or online accounts ESR believes may be associated with you, cancel an event registration associated with any person acting or believed to be acting in concert with you, remove any unauthorized User Content or exercise any other remedy available, if ESR believes that your conduct or the conduct of any person with whom ESR believes you act in concert, or the User Content you provide, or any resale of such event registrations purchased through ESR, violates or is inconsistent with these Terms of Use or the law, or violates the rights of ESR, a customer of ESR or another user of the Services. Violating any limitations or terms on the Services, including but not limited to utilizing automated means to process or place event registrations that exceed the stated limit will be deemed to be a material violation of these Terms of Use.
You agree that monetary damages may not provide a sufficient remedy to ESR for violations of these Terms of Use and you consent to injunctive or other equitable relief for such violations.
You agree that abusive use of the Services, as defined above, causes damage and harm to ESR in the form of, among other things, impaired goodwill, lost sales, and increased expenses associated with responding to abusive use of the Services. You further agree that monetary damages for abusive use of the Services are difficult to ascertain and that proof of monetary damages for abusive use would be costly and difficult to calculate. Accordingly, you agree that liquidated damages are warranted for abusive use. ESR is not required to provide any refund to you if it exercises any of its rights or remedies because you have violated these Terms of Use or any of ESR’s rights. Additionally, ESR reserves the right, in its sole discretion, to modify, suspend or discontinue any part of these Services at any time, with or without notice to you. ESR also reserves the right, in its sole discretion, to impose limits on certain features and services and to restrict access to the Services without notice to you. ESR shall not be liable to you or any third party for any claim or cause of action arising out of its exercise of the foregoing rights.
10. Disclaimers. THE SERVICES, THE CONTENT ON THE SERVICES, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ESR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE CONTENT, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
THE INFORMATION ON THE SERVICES OR OTHERWISE IS PROVIDED WITH THE UNDERSTANDING THAT NEITHER ESR NOR MEMBERS OF THE SERVICES, WHILE SUCH MEMBERS ARE PARTICIPATING IN ACTIVITIES ON THE SERVICES, ARE ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING OR OTHER PROFESSIONAL SERVICES OR ADVICE. ESR ENCOURAGES YOU TO SEEK APPROPRIATE PROFESSIONAL ADVICE OR CARE FOR ANY SITUATION OR PROBLEM WHICH YOU MAY HAVE. IN PARTICULAR, THE ACTIVITIES AND EXERCISES DESCRIBED IN TRAINING PROGRAMS AND ARTICLES ON THE SERVICES CAN BE DANGEROUS AND MAY RESULT IN INJURY OR DEATH. YOU SHOULD CONSULT WITH A LICENSED PHYSICIAN BEFORE PARTICIPATING IN ANY OF THE ACTIVITIES DESCRIBED ON THE SERVICES.
IN MOST INSTANCES, THE ABILITY OF ESR TO PROVIDE SERVICES IS DEPENDENT UPON A TELECOMMUNICATIONS NETWORK OR THE INTERNET, WHICH MAY NOT BE FULLY SECURED, AS WELL AS GOODS AND SERVICES PROVIDED BY VARIOUS OTHER VENDORS AND THIRD PARTIES. ESR DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER(S) ON WHICH THE SERVICES IS HOSTED IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THE SERVICES WILL MEET YOUR REQUIREMENTS, THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SERVICES, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF ESR, WHETHER MADE ON THE SERVICES OR OTHERWISE, SHALL CREATE ANY WARRANTY. ESR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ESR WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOUR USE OF THE SERVICES AND ANY CONTENT PROVIDED THROUGH THE SERVICES ARE ENTIRELY AT YOUR OWN RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ESR AND/OR ITS AFFILIATED PARTIES OR ON OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF USE.
The Services, Content or Forums may include inaccuracies or errors, or information or Content that violate these Terms of Use. Additionally, unauthorized alterations may be made by third parties to the Services, Content or Forums. Although we attempt to ensure the integrity of the Services, we make no guarantees as to the Services’ completeness or correctness. In the event that a situation arises in which the Services’ completeness or correctness is in question, please contact us at ad***@ma************.com with, if possible, a description of the material to be checked and the location (URL) where such material can be found on the Services, as well as information sufficient to enable us to contact you. We will try to address your concerns as soon as reasonably practicable. For copyright infringement claims, see the Section on “Claims of Copyright Infringement,” above.
11. Limitation of Liability. TO THE GREATEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT NEITHER ESR NOR ANY OF ITS AFFILIATES, SHAREHOLDERS, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE OR WILL BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES AND/OR CONTENT CONTAINED ON THE SERVICES, ANY LINKED SERVICES OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICES. WITHOUT LIMITING THE FOREGOING, TO THE GREATEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ESR SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR (I) THE USE OR THE INABILITY TO USE THE SERVICES, PRODUCTS, SERVICES OR ANY LINKED SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES OR ANY LINKED SERVICES; (III) USE BY YOU OF ANY TRAINING PROGRAM OR ANY OTHER PRODUCT PURCHASED THROUGH ESR; (IV) YOUR PARTICIPATION IN ANY PROMOTION OR PROGRAM COORDINATED BY ESR; (V) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER ARISING IN CONTRACT OR IN TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF ESR; (VI) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (VII) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES OR ANY LINKED SERVICES; (VIII) ANY FAILURE OF ANOTHER USER TO THE SERVICES TO CONFORM TO THE CODE OF CONDUCT; (IX) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; (X) ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, DEFECTS, DATE BOMBS, TIME BOMBS OR OTHER ITEMS OF A DESTRUCTIVE NATURE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (XI) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES; (XII) ANY FAILURE OF AN EVENT ORGANIZER TO HONOR A REGISTRATION; (XIII) THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED ON THE SERVICES; (XIV) THE TRUTH OR ACCURACY OF ANY CONTENT OR EVENT LISTINGS ON THE SERVICES; AND/OR (XV) ANY OTHER MATTER RELATING TO THE SERVICES, OR ESR PRODUCTS OR SERVICES. THE MAXIMUM TOTAL AGGREGATE LIABILITY OF ESR, ITS AFFILIATES, SHAREHOLDERS, LICENSORS, SUPPLIERS, ADVERTISERS AND SPONSORS, AND ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS AND OTHER REPRESENTATIVES, AND YOUR SOLE AND EXCLUSIVE REMEDY, FOR ALL DAMAGES, LOSSES SUFFERED BY YOU AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF THE TOTAL AMOUNT OF MONIES RECEIVED BY ESR FROM YOU OR $100 USD.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. Indemnification. You agree to indemnify, defend and hold ESR and its affiliates, licensors, suppliers, advertisers and sponsors, and their respective directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of these Terms of Use, including any violation of the Code of Conduct, above; (b) any allegation that any User Content or other Content you submit to us or transmit to the Services infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (c) your activities in connection with the Services; and/or (d) termination of your access to the Services.
13. Arbitration Agreement.
(a) Except as prohibited by law, each party to these Terms of Use agrees that any claim, controversy or legal dispute arising out of or relating to these Terms of Use (hereinafter, a “Dispute”) will be resolved through binding arbitration administered by JAMS. If JAMS is not available in the state in which you reside, then the Dispute will be resolved through binding arbitration administered by the American Arbitration Association (the “AAA”). This arbitration agreement is intended to be broadly interpreted and includes claims, controversies or disputes arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, all of which shall be considered within the definition of “Dispute.” THE PARTIES UNDERSTAND THAT, EXCEPT AS EXPLICITLY SET FORTH TO THE CONTRARY HEREIN, THEY ARE WAIVING ANY RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES. However, ESR may not invoke its right to arbitrate any individual claim that you bring in small claims court, as long as it is brought and maintained as an individual claim. Notwithstanding the above, we both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Each party agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Use must be filed within two (2) years after such claim or cause of action arose or be forever barred.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). Any Notice to us should be addressed to: Chief Legal Officer, c/o Max Field Hockey, LLC (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If we and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, either party may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. After we receive notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee up to $350, unless your claim is for greater than $50,000 (as described further below).
The arbitration will be conducted under and governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the AAA (collectively, the “AAA Rules”), except as specified in or modified by these Terms of Use. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Section 16. All issues are for the arbitrator to decide, except that issues relating to the scope of the arbitration provision are for the court to decide (as described further in subsection (d) below). The rules promulgated by the AAA concerning class arbitration shall not apply. For any non-frivolous claim that does not exceed $50,000, we will pay all costs of the arbitration (i.e. the JAMS filing and administration fee and the arbitrator’s fee) up to $350 for an arbitration initiated in accordance with this arbitration agreement. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies we previously disbursed that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $50,000 in damages, the payment of these fees will be governed by the AAA rules.
Notwithstanding the AAA Rules, the foregoing or any other provision of these Terms of Use (including the arbitration agreement), any disagreement or dispute concerning arbitrability (whether a particular Dispute is arbitrable) or the scope of this arbitration agreement shall be resolved by the United States District Court for the federal district in which you reside. If that United States District Court lacks subject matter jurisdiction, then any such disagreement or dispute shall be resolved by the state court of general jurisdiction embracing the area in which you reside. By way of example only (and not by limitation), if the parties do not agree on whether a particular Dispute is subject to arbitration under this arbitration agreement, the proper tribunal to decide such Dispute is the United States District Court (for the appropriate district, as provided above) or, absent subject matter jurisdiction in that United States District Court, in the appropriate state court (as described above). The arbitrator shall stay all arbitration proceedings pending a decision from the appropriate court on disputes under this subsection (d). The arbitrator shall follow, adhere to and defer to the decision, order, decree or judgment of the court following the court’s decision of any such dispute under this subsection (d). Any action, award or partial award of the arbitrator in contravention of this limitation may be the subject of court appeal by the aggrieved party. No other aspect of any ruling by the arbitrator shall be appealable, and all other aspects of the arbitrator’s ruling shall be final and non-appealable, except as set forth herein.
WAIVER OF CLASS-WIDE PROCEEDINGS: You agree that, by entering into these Terms of Use, you and we are each waiving the right to participate in a class action or class arbitration. Each party to these Terms of Use agrees and covenants that it will not initiate any class-wide proceedings, including class actions or class arbitrations, against another party, and will not act as a class representative or class member. This provision constitutes an agreement that any Dispute will be resolved exclusively on a bilateral basis between the parties, with each party acting in his/her/its individual capacity. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason the prohibition on class arbitration in this subsection (e) is not or cannot be enforced, then the agreement to arbitrate will not apply.
These Terms of Use evidence a transaction in interstate commerce, and thus the Federal Arbitration Act (the “FAA”) governs the interpretation and enforcement of this provision. Delaware state law and procedures concerning arbitration shall apply to these Terms of Use only to the extent that they do not conflict with and are not inconsistent with the FAA. This arbitration agreement shall survive termination of these Terms of Use.
Unless both parties agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. Subject to the terms of this arbitration agreement, all Disputes shall be decided by a single arbitrator, who shall be either: (1) a retired federal judge; (2) a retired state court judge who sat on a trial court or appellate court for at least five (5) years; or (3) an attorney admitted to practice in the state in which the Dispute will be resolved for at least twenty-five (25) years with no disciplinary history. The arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of the effective date of the notice initiating the arbitration. If the parties cannot agree on an arbitrator, then the complaining party shall notify JAMS (or the AAA, as applicable) and request selection of an arbitrator in accordance with the applicable AAA Rules. The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claim(s) asserted.
This arbitration agreement is not intended to modify or limit the remedies available to either party, including the right to seek interim relief, such as injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration. Any Dispute that is not arbitrated, including any judicial action to enforce this arbitration provision will be litigated exclusively in the United States District Court for the federal district in which you reside and the parties hereby consent and submit to the jurisdiction and venue of such court. If that United States District Court lacks subject matter jurisdiction, then any such disagreement or dispute shall be resolved by the state court of general jurisdiction embracing the area in which you reside.
The arbitrator shall have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; provided, however, that in no event shall the right to discovery granted to the parties to these Terms of Use exceed ten (10) interrogatories, twelve (12) documents requests, two third-party subpoenas, and one deposition (of not more than four hours), per side. The parties may submit such pre-arbitration and post-arbitration briefs (including briefs during arbitration) as they choose, provided that no party shall submit briefing exceeding a reasonable page limitation to be set by the arbitrator. In the event any party submits a motion, the arbitrator shall consider the motion and either deny it or request opposition briefing by the non-moving party, which shall not be required until requested by the arbitrator. The arbitrator may not grant a motion without allowing the opposing party an opportunity to oppose. The total length of the arbitration hearings on the merits shall not exceed 10 hours of hearing time, to be divided equally between the opposing sides. All discovery shall be completed no later than sixty (60) days after appointment of the arbitrator. The hearing shall be concluded no later than one hundred eighty (180) days after appointment of the arbitrator, unless the arbitrator’s schedule requires a later hearing. The arbitrator may only extend these limits at the request of a party when the arbitrator finds exceptional cause for the extension. The parties may extend these limits by mutual agreement.
The arbitrator shall be required to issue a written arbitration decision including the arbitrator’s essential findings, conclusions and a statement of award. Except as set forth herein, the arbitrator shall have exclusive authority to resolve all Disputes.
14. Connectivity; Mobile. Normal carrier charges and taxes may apply to any Content you access from the Services. ESR is not responsible for any surcharges you incur from your cell phone or internet service provider as a result of the use of the Services. With respect to mobile versions or applications, your carriers’ normal rates and fees, including text messaging and data fees may apply to your use of the Services or Services. In the event you change or deactivate your mobile telephone number, you will endeavor to update your account information within 48 hours to ensure that your messages are not sent to the person who acquires your old number.
15. Applicable Law. You and ESR agree that the statutes and laws of the State of North Carolina, without regard to the conflict of laws principles thereof, will apply to all matters relating to use of the Services.
16. U.S. Export Controls. This Services and software derived from this Services is further subject to United States export controls. No software from this Services may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Services or any software derived therefrom, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
17. Privacy. We believe that your privacy and the privacy of all our users are important. These Terms of Use are subject to the Privacy Policy, which is hereby incorporated by reference. Please carefully review our Privacy Policy. By using the Services, you acknowledge that you have read, and you agree to be bound by the terms of our Privacy Policy. You further acknowledge and agree that any disputes related to our Privacy Policy, including any breaches in security or privacy, will be subject to the limitations on liability contained in these Terms of Use. By registering for and participating in a sports Event, you understand and agree that your activity or event, or other results may be posted by the Event organizer. If you would prefer that your results not be posted or be taken down, you must contact the organizer of the Event directly, and ESR is not responsible for the posting or removal of such information. ESR will not be responsible or otherwise liable for any use or disclosure of your contact information, or financial information, by a third party to whom ESR is allowed to disclose your contact information under the Privacy Policy. If you post any User Content to the Services, by email or otherwise, we will treat it as non-confidential and non-proprietary to you. When we say in these Terms of Use “post” we mean the provision of information to the Services through features of the Services that are used to make information available to other members of the public (e.g., user reviews, bulletin/message boards, chat rooms, etc.). User Content shall not be subject to the Privacy Policy and may be publicly displayed and disclosed and otherwise used by ESR or any third party in any way. By posting User Content to the Services, you authorize us to use or allow others to distribute, reproduce or otherwise use such User Content. You should not post information about yourself on the Services that can be used to identify or contact you, including, but not limited to, your name, home or work address, phone numbers, email address or other such information. If you post such information, ESR cannot prevent it from being used in a manner that violates these Terms of Use, the law, or your personal privacy and safety. By posting such information on the Services, you violate these Terms of Use, and you assume the risks and sole liability for the results of such posting.
18. Questions. If you have any questions, comments or complaints regarding these Terms of Use or the Services, feel free to contact us at: ad***@ma************.com
19. Notice Regarding Electronic Commercial Services for California Users. Under California Civil Code Section 1789.3, California Services users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
20. Notice. ESR may provide you with notices, including those regarding breaches of security, by email, regular mail or postings on the Services. All notices from you to ESR must be sent to Max Field Hockey at ad***@ma************.com and such notices will be deemed received the next day if sent via email, overnight mail or courier or three (3) days after deposited in the mail sent certified or registered.
21. Miscellaneous. ESR may assign its rights and obligations under these Terms of Use and upon such assignment, ESR may be relieved of any further obligation hereunder. You may not assign any of your rights or obligations under these Terms of Use. Any assignment in violation of these terms is void.
Rights and obligations under these Terms of Use which by their nature should survive will remain in full effect after termination or expiration of the Terms of Use.
You represent to ESR that you have the authority to register with ESR according to these Terms of Use. The failure of ESR to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. ESR may provide you with notices, including those regarding changes to these Terms of Use and notices regarding breaches of security, by email, regular mail or postings on the Services. Except for certain ESR licensors, or as may be otherwise expressly provided herein, there are no third-party beneficiaries to these Terms of Use. If any provision of these Terms of Use is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (i) the validity, legality, and enforceability of the remaining provisions of these Terms of Use (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the fullest extent possible, the unenforceable provision shall be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable provision and these Terms of Use shall be deemed amended accordingly. We may translate these Terms of Use, our Privacy Policy or any other operating rules, policies and procedures that may be published from time to time on the Services into other languages for your convenience. The English language version of each of these documents is the version that governs your use of the Services and in the event of any conflict between the English language version and a translated version, the English language version will control. A printed version of these Terms of Use and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
