Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the Ballertag mobile application (the “Service”) operated by Ballertag, Inc. (“us”, “we”, or “our”). Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
The Terms govern and apply to your access and use of www.ballertagapp.com and other websites operated by Ballertag Inc. (“Ballertag™”, “we” or “us”) on which a link to the Terms is posted (“Site”) and Ballertag’s mobile app in which the Terms are made available (collectively, “Apps”). The Site and the Apps are collectively referred to as the “Service.”
You acknowledge and agree to the following:
- The App(s) are licensed, not sold to you, and you may use the Service only as set forth in the Terms;
- When you first create an account on the Service, we may ask for your mobile number in order to verify your account by text message and any applicable text messaging fees of your mobile network operator (the “Carrier”) will apply;
- Your use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of the Carrier, which are your sole responsibility;
- The Service is provided “as is” without warranties of any kind and Ballertag’s liability to you is limited; and
- Disputes arising hereunder will be resolved by binding arbitration. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge. Please review the Dispute Resolution and Arbitration provision below for the details regarding your agreement to arbitrate any disputes with Path.
By creating an Account on our service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
Our Service allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Content”). You are responsible for the Content that you post on or through the Service, including its legality, reliability, and appropriateness.
By posting Content on or through the Service, You represent and warrant that:
the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright. You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third party posts on or through the Service. However, by posting Content using the Service you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Service. You agree that this license includes the right for us to make your Content available to other users of the Service, who may also use your Content subject to these Terms. Ballertag, Inc. has the right but not the obligation to monitor and edit all Content provided by users. In addition, Content found on or through this Service are the property of Ballertag, Inc. or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
Access to the Service, or to certain features of the Service, may require you to pay fees to a Service Provider. If you have any questions or issues with such payments, please contact the applicable Service Provider.
When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service. You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use a Ballertag that is offensive, vulgar or obscene.
The Service and its original content (excluding Content provided by users), features and functionality are and will remain the exclusive property of Ballertag, Inc. and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Ballertag, Inc.
LINKS TO OTHER WEBSITES
Our Service may contain links to third party web sites or services that are not owned or controlled by Ballertag, Inc. Ballertag, Inc. has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Ballertag, Inc. shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms. If you wish to terminate your account, you may simply discontinue using the Service. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You agree to indemnify and hold us and our officers, directors, employees, consultants, affiliates, subsidiaries and agents harmless from and against any and all claims, costs, damages, liabilities, and expenses (including without limitation attorneys’ fees) we incur in relation to or arising from (i) your access to or use of the Service, (ii) your violation of the Terms or any applicable law or regulation, (iii) your violation of any rights of any third party, including without limitation intellectual property rights or rights of publicity, confidentiality, property or privacy; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
LIMITATION OF LIABILITY
In no event shall Ballertag, Inc., nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from your access to or use of or inability to access or use the Service; any conduct or content of any third party on the Service; any content obtained from the Service; and unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose. This includes not being liable for any potential and incidental injuries users sustain as a result of participating in events created on the Ballertag platform.
YOU UNDERSTAND AND AGREE THAT SERVICE (INCLUDING WITHOUT LIMITATION ANY CONTENT OR MATERIALS OFFERED THROUGH THE SERVICE) ARE PROVIDED TO YOU “AS IS” AND ON AN “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICE (INCLUDING WITHOUT LIMITATION ANY CONTENT OR MATERIALS OFFERED THROUGH THE SERVICE) WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED OR SECURE BASIS OR BE FREE OF ERRORS OR HARMFUL COMPONENTS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE (INCLUDING WITHOUT LIMITATION ANY CONTENT OR MATERIALS OFFERED THROUGH THE SERVICE) AND YOUR DEALINGS WITH OTHER SERVICE USERS.
Our Service (including without limitation the App(s)) is protected by copyright, trademark, and other laws of the United States and foreign countries including Singapore. Except as expressly provided in the Terms, we (or our licensors) exclusively own all right, title and interest in and to the service (including without limitation the App(s)), including all associated intellectual property rights. Except as expressly provided in the terms, you may not make use of the service, and Ballertag reserves all rights to the service. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the service (including without limitation the App(s)). You acknowledge and agree that any feedback, comments or suggestions you may provide regarding the service (including without limitation the App(s)) (“Feedback”) will be the sole and exclusive property of Ballertag and you hereby irrevocably assign to us all of your right, title and interest in and to all feedback.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
These Terms shall be governed and construed in accordance with the laws of California, United States, without regard to its conflict of law provisions. Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.
DISPUTE RESOLUTION AND ARBITRATION
In the interest of resolving disputes between you and Ballertag Inc. in the most expedient and cost effective manner, you and Ballertag Inc. agree that any and all disputes arising in connection with the terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. In most cases, arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of the terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of the terms.
Any arbitration between you and Ballertag Inc. will be governed by the Arbitration Rules of the Delaware courts.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by registered mail, or in the event that we do not have a physical address on file for you, via the email address associated with your Ballertag account (“Notice”). Ballertag Inc. address for Notice is: Ballertag Inc., Attention: General Counsel, PO Box 8627, Princeton, NJ 08543. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Ballertag may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Ballertag shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Ballertag shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Ballertag in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
In the event that you commence arbitration in accordance with the Terms, Ballertag Inc. will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the SIAC Rules. Any arbitration hearings will take place in Singapore, provided that if the claim is for $10,000 or less, you and Ballertag may mutually agree, subject to the arbitration tribunal’s view, on an appropriate manner to conduct the arbitration to ensure the fair, expeditious, economical and final determination of the dispute.
If the arbitration tribunal finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose, in such case, you agree to reimburse Path for all costs of the arbitration as defined by the SIAC Rules.
Regardless of the manner in which the arbitration is conducted, the decision by the arbitration tribunal, including its decision on the award, the costs of arbitration, and party’s legal and other costs, shall be final and binding.
YOU AND PATH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Path 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.
In the event that Path makes any future change to this arbitration provision (other than a change to Ballertag’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Ballertag’s address for notice, in which case your Account shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
If the class action waiver two paragraph(s) above is found to be unenforceable or if the entirety of this Dispute Resolution and Arbitration section is found to be unenforceable, then the entirety of this Dispute Resolution and Arbitration section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in in the General section shall govern any action arising out of or related to the Terms.
CONSENT TO ELECTRONIC COMMUNICATIONS
QUESTIONS & CONTACT INFORMATION
The Services are offered by Ballertag Inc., located at PO Box 8627, Princeton, NJ 08543. Please contact us if you have any questions about our Terms. You may contact us by sending correspondence to the foregoing address or by emailing us at firstname.lastname@example.org.
Effective Date: January 31, 2017