TERMS OF SERVICE & WAIVER
Please read these Terms of Service. You agree to comply with and be bound by these Terms of Service by accessing or using the NYC Pickleball Platform as defined below.
The term “you” as used herein shall mean any person accessing or using the NYC Pickleball Platform as defined below. These Terms of Service (“Terms”) constitute a legally binding agreement between you and NYC Pickleball Inc. (“NYC Pickleball”, “we,” “our” or “us”). These Terms govern your access to and use of the NYC Pickleball Spaces (as defined below), the NYC Pickleball website and any other internet-based or social media site through which NYC Pickleball makes the NYC Pickleball Spaces or NYC Pickleball related information available (collectively, the “Site”), our mobile, tablet, and other smart device applications, and application program interfaces (collectively, the “Application”) and all related services. (The Site, the Application and/or all related services are sometimes referred to herein collectively as the “NYC Pickleball Platform”).
NYC Pickleball reserves the right to change or modify any of the terms and conditions in these Terms from time to time, any time, without prior notice and in its sole discretion. Any changes or modifications to these Terms will be effective upon posting of the changes or modification to the NYC Pickleball website (https://www.nycpickleball.com and https://nycpickleball.podplay.app) or posting of revised Terms to the NYC Pickleball website. No other notification of any changes or modifications to these Terms shall be required. Your continued use of the NYC Pickleball Platform following the posting of any changes or modifications constitutes your acceptance of such changes or modifications and if you do not agree with these changes or modifications, you must immediately cease using the NYC Pickleball Platform. You are responsible for regularly reviewing the most current Terms. Our Privacy Policy and Guest Agreement applicable to your use of the NYC Pickleball Platform are incorporated by reference into these Terms.
1. Eligibility and Using the NYC Pickleball Platform
Your participation in using the NYC Pickleball Platform or the NYC Pickleball Spaces is for your sole, personal use and not for commercial purposes. By using the NYC Pickleball Platform you represent to NYC Pickleball that you are at least 18 years of age and suffer from no legal incapacity to enter into contracts. You may not authorize others to use your NYC Pickleball username and/or password, and you may not assign or otherwise transfer your user account and/or password to any other person or entity. When using the NYC Pickleball Platform or NYC Pickleball Spaces, you agree to comply with all applicable laws of the country, state and city in which you are present while using the NYC Pickleball Platform and/or the location of any NYC Pickleball Spaces used in connection with your NYC Pickleball Account (as defined below).
As further described in the Privacy Policy, NYC Pickleball uses a third-party payment processor (the “Payment Processor”) to link your credit card account to the NYC Pickleball Platform. The processing of payments or credits, as applicable, in connection with your use of the NYC Pickleball Platform and NYC Pickleball Spaces will be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to these Terms. NYC Pickleball is not responsible for any errors, omissions or damages caused or made by the Payment Processor.
NYC Pickleball Space(s) as used herein shall mean any physical location, court, area or venue to which NYC Pickleball gives you access for the purpose of engaging in the activity of playing pickleball a/k/a table tennis. By using the NYC Pickleball Platform, you agree to be bound by and comply with any additional terms, conditions and policies provided by the owner (“Building Owner”), tenant, and property manager of the NYC Pickleball Spaces (collectively, the “Property Managers“) relating to the use of a specific NYC Pickleball Space(s), including compliance with building security procedures, IT access and use procedures provided by the Property Managers (the “Manager’s Policies“). The Manager’s Policies may be provided in electronic format through the NYC Pickleball Platform or in hardcopy or other format at the NYC Pickleball Spaces.
2. Account Registration
In order to be able to use the NYC Pickleball Platform or the NYC Pickleball Spaces you first need to sign up for an account with NYC Pickleball, which you can do through the NYC Pickleball Platform. Once you complete your sign-up with NYC Pickleball, you will be provided with a personal account (an “Account”). Before booking, you will be asked to provide NYC Pickleball with your personal information, mobile telephone number and credit card information (which will be held and processed by our third-party Payment Processor further details of which are set out in the paragraph above and in our Privacy Policy). You agree to maintain complete, accurate, and up-to-date information in your Account. Your failure to maintain complete, accurate, and up-to-date Account information, including having an invalid or expired credit card on file, may result in your inability to access and use the NYC Pickleball Platform or the NYC Pickleball Spaces. NYC Pickleball reserves the right to suspend or terminate your Account and refuse any and all current or future use of the NYC Pickleball Platform for any reason, including if you violate these Terms in any respect or provide information that is untrue, inaccurate, not current or incomplete, or if NYC Pickleball has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, You may not use the NYC Pickleball Platform or Spaces for any illegal purpose or in any manner inconsistent with these Terms.
You are responsible for all activity that occurs with respect to your Account, including, without limitation, use of the NYC Pickleball Platform and NYC Pickleball Spaces. Without limiting the foregoing, for any reservation made or use of any NYC Pickleball Spaces through your Account, you hereby agree to be fully responsible and to indemnify NYC Pickleball for any damages or violation of these Terms or applicable laws, rules or regulations, whether such damage or violation was caused by you or by other persons using the NYC Pickleball Platform or NYC Pickleball Spaces in connection with or through your Account (“Your Guests”).
3. NYC Pickleball House Rules
By using the NYC Pickleball Platform, you agree that
You will not allow Your Guests to use the NYC Pickleball Spaces without your physical attendance at all times.
You and Your Guests will not use the NYC Pickleball Platform and NYC Pickleball Spaces for dangerous, unlawful or illegal purposes.
You and Your Guests will not use the NYC Pickleball Platform or NYC Pickleball Spaces for any inappropriate purposes, including but not limited to drug use, alcohol abuse, gambling or prostitution, pornography, sexual activity, violent, dangerous or threatening behavior, skateboarding, biking, roller-skating, roller blading, commercial purposes or any other purpose unrelating to engaging in the activity of pickleball or which is reasonably likely to reflect negatively on NYC Pickleball or any Building Owner.
It is explicitly prohibited to smoke or vape in the NYC Pickleball Spaces.
You and Your Guests will not light or allow any candles, incense sticks or naked flames in the NYC Pickleball Spaces or cause any smoke, vapor, fire or fumes.
You and Your Guests will not make excessive noise in the NYC Pickleball Spaces, nor create any noise, music or loud sounds, nor conduct any other activity which would in NYC Pickleball’s or any Property Manager’s judgment disturb other NYC Pickleball clients, guests, or other tenants in any building containing a NYC Pickleball Space.· You and Your Guests will follow all additional rules, regulations, and by-laws regarding the NYC Pickleball Spaces, as may be communicated through the NYC Pickleball Platform, these Terms, posted signs, or otherwise.
You and Your Guests will not use the NYC Pickleball Platform or NYC Pickleball Spaces for sending or storing any unlawful material or for fraudulent purposes.
You and Your Guests will not damage, alter, install, remove or modify any fixtures, equipment, machinery or appliances in the NYC Pickleball Spaces.
You and Your Guests are responsible for leaving the NYC Pickleball Spaces undamaged and in a clean and tidy condition.
Neither NYC Pickleball nor any Property Manager is responsible for any property you and Your Guests may leave behind in a NYC Pickleball Space. It is your responsibility to ensure that you have taken all of your personal belongings when leaving a NYC Pickleball Space.
You and Your Guests may be held liable for any costs to repair any damage to the NYC Pickleball Spaces and items therein beyond normal wear and tear during your use of the NYC Pickleball Space.
You may be held liable and will be charged by NYC Pickleball for any items not belonging to you that are taken from the NYC Pickleball Spaces.
You and Your Guests will not use the Site, NYC Pickleball Spaces or NYC Pickleball Platform to cause nuisance, harassment, or inconveniences to other users, Building Owners, tenants or others.
You will not copy, or distribute the Site, Application or other content relating to or a part of the NYC Pickleball Platform without prior written permission from NYC Pickleball.
You and Your Guests will not willfully or negligently harm the NYC Pickleball Platform or NYC Pickleball Spaces in any way whatsoever.
You and Your Guests will provide NYC Pickleball and/or the Property Mangers with whatever proof of identity we/they may reasonably request.
When using the internet within the NYC Pickleball Spaces, you and Your Guests shall only use it for lawful purposes, and without restricting the foregoing, you shall not use it for purposes of illegal, criminal or lurid or obscene acts, fraudulent or other inappropriate behavior.
You and Your Guests must wear clothing appropriate to the NYC Pickleball Space while using the NYC Pickleball Space, including wearing shirts, pants (or shorts) and footwear of an appropriate nature and not containing any inappropriate or obscene logo or design. No clothing may be changed except in a private bathroom area.· There is a capacity limit as to the number of persons permitted in a NYC Pickleball Space at any given time, and that such limit shall be posted on the NYC Pickleball Platform, and you hereby agree to adhere to such capacity limit.
You will not allow any NYC Pickleball Space to be used by persons under the age of 18 unless accompanied by at last one adult supervisor over the age of 18.
You and Your Guests hereby consent to the use of sensors by NYC Pickleball to track the location of various items in the NYC Pickleball Spaces, which (without limitation) shall be used by NYC Pickleball to optimize the NYC Pickleball Spaces. You and Your Guests consent to the audio or visual monitoring and/or recording of the public areas of any NYC Pickleball Space.
You will report to NYC Pickleball promptly upon its occurrence any damage to any NYC Pickleball Space, its equipment or fixtures, or any incident arising at any NYC Pickleball Space which caused any harm or damage to any person or property of a material nature
You and Your Guests will treat all other users of any NYC Pickleball Spaces (or occupants of any Building in which a court Space is located) in a courteous, respectful and appropriate manner at all times.
Rules applicable to COVID 19 will be posted at each NYC Pickleball Space and must be strictly adhered to.
You and Your Guests may not charge any fee to any person in connection with the use of a NYC Pickleball SPACE whether for private lessons or otherwise without NYC Pickleball’s express written consent.
If you feel that any person associated with NYC Pickleball or any person in a NYC Pickleball Space that you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior; (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to NYC Pickleball with your police station and report number (if applicable), provided that your report will not obligate us to take any action beyond that required by law, if any, or cause us to incur any liability.
You further acknowledge that your use of the NYC Pickleball Spaces does not constitute NYC Pickleball or the Building Owner granting you a lease, but is rather a limited, revocable, non-exclusive, non-transferable contractual license to use, subject to the terms of this Agreement. In its sole discretion and without limiting any of NYC Pickleball’s other rights hereunder, NYC Pickleball may restrict, suspend or terminate your access to the NYC Pickleball Spaces in the event of fraud, trespassing, or violation of this Agreement, or for any other lawful reason in the sole discretion of NYC Pickleball.
4. Damages, Repair or Cleaning Fees
As a user of a NYC Pickleball Space, you are responsible for leaving the NYC Pickleball Space (including any property in the NYC Pickleball Space) in the condition it was in when you arrived. You are responsible for your own acts and omissions and are also responsible for the acts and omissions of Your Guests or other persons to whom you provide access to the NYC Pickleball Space. You are responsible for the cost of repair for damage to, or necessary cleaning of, NYC Pickleball Spaces resulting from your violation of these Terms or your use of the NYC Pickleball Platform or NYC Pickleball Spaces in excess of normal “wear and tear.” If NYC Pickleball, in its reasonable discretion, determines that excessive repair or cleaning is required, NYC Pickleball reserves the right to charge the payment method designated in your Account for the reasonable cost of such repair and/or cleaning, as well as an additional service fee which shall not exceed $500 US Dollars per occurrence and you agree to be responsible for payment of same. Any such amounts are non-refundable and at the reasonable discretion of NYC Pickleball.
5. Payment Terms
Any fees which NYC Pickleball may charge you for the use of the NYC Pickleball Platform or NYC Pickleball Spaces, will be as set out on the NYC Pickleball Platform at the time of purchase, are inclusive of any taxes payable, are due immediately and are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, NYC Pickleball’s decision to terminate your usage, disruption caused to our NYC Pickleball Platform or NYC Pickleball Spaces either planned, accidental or intentional, or any reason whatsoever. NYC Pickleball reserves the right to determine final prevailing pricing.
You do hereby agree that you shall be charged fees based on the length of time of your booking of the NYC Pickleball Spaces (regardless if you only make use of the NYC Pickleball Spaces for less than your booked time for any reason). If you exceed the amount of time for which you booked a NYC Pickleball Space, then you shall be charged for such excess time, as well as an overage charge not to exceed two times the amount charged for the subject booking if such excess time conflicts with another user’s booked time. You do hereby consent to such excess time charges and to such overage charge.
NYC Pickleball may make promotional offers to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. NYC Pickleball may change the fees for the NYC Pickleball Platform NYC Pickleball Spaces or other services at our sole discretion.
If a credit card charge is declined, we will notify you to provide a valid replacement. Failure to provide a replacement within 48 hours may result in the suspension of your rights to access the NYC Pickleball Platform. If a payment is declined, refunded, cancelled or charged back by your credit card issuing bank, or another person, you are not entitled to the return of any associated service fees (such as payment processing fees), irrespective of the reason for such decline, refund, cancellation or charge back. NYC Pickleball reserves the right, at its sole discretion, to review and refuse a payment or the processing of a payment if it suspects any fraudulent activity or for any reason whatsoever. If you access the NYC Pickleball Platform via your mobile phone (through the Application, for example), please be aware that your carrier’s normal rates will still apply.
6. License, Restrictions and Copyright Policy
Subject to your compliance with these Terms, NYC Pickleball grants you a limited, non-exclusive, non-transferable and revocable license to use the NYC Pickleball Platform. Should you choose to download content from the NYC Pickleball Platform, you must do so in accordance with these Terms. Such content is provided to you for its intended purposes only and remains at all times the property of NYC Pickleball.
You will not use, copy, adapt, decompile, modify, reverse engineer, prepare derivative works from, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the NYC Pickleball Platform or any component thereof, NYC Pickleball Spaces, or any content therein, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise with respect to any intellectual property rights owned or controlled by NYC Pickleball or its licensors, except for the licenses and rights expressly granted in these Terms or expressly agreed in writing by NYC Pickleball.
7. User Content
NYC Pickleball may, in its sole discretion, permit users of the NYC Pickleball Platform to post, upload, publish, submit or transmit content. You are solely responsible for all content that you upload, email, post or otherwise transmit via or to the NYC Pickleball Platform, including documents, text, graphics, video, messages, forum postings, profile information, comments, questions, or other materials (“User Content”). By making available any User Content on or through the NYC Pickleball Platform, or NYC Pickleball Space, you hereby grant to NYC Pickleball a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, sublicensable and transferable right, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content including but without limitation on, through or by means of the NYC Pickleball Platform or NYC Pickleball Spaces. In connection herewith, you hereby renounce and waive in favor of NYC Pickleball any moral rights you have or might have, now or in the future, with respect to User Content. Nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any User Content. You also hereby represent and warrant that you have the right to grant us this right over your User Content, and that you will indemnify us for any loss resulting from a breach of this warranty and defend us against claims resulting from same.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the NYC Pickleball Platform or NYC Pickleball Spaces. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the NYC Pickleball Platform or NYC Pickleball Spaces or you have all rights, licenses, consents and releases that are necessary to grant to NYC Pickleball the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or NYC Pickleball’s use of the User Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
8. Intellectual Property
All intellectual property rights in and to the NYC Pickleball Platform and any component thereof, and the NYC Pickleball Spaces, including, including but not limited to patents, copyrights, trademarks, industrial designs, trade secrets, and service marks, are the exclusive property of NYC Pickleball or are licensed to NYC Pickleball. You agree to abide by all applicable patent, trademark, copyright and other laws, as well as any additional patent, trademark and copyright notices or restrictions contained in the NYC Pickleball Platform and any component thereof. Any use of materials on the NYC Pickleball Platform other than as permitted in these Terms including reproduction, modification, distribution, or republication, without prior written permission of NYC Pickleball is absolutely prohibited. “NYC Pickleball”, the NYC Pickleball logo and other trade and/or service marks are the exclusive property of NYC Pickleball and may not be used for any of the aforementioned purposes. NYC Pickleball may protect the NYC Pickleball Platform by technological means intended to prevent unauthorized use of the NYC Pickleball Platform. You undertake not to circumvent these means. Infringement of the rights in and to the NYC Pickleball Platform will, in addition to any other right or remedy available to NYC Pickleball, in and of itself, result in the termination of all your rights under these Terms.
9. Additional Restrictions on Use
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the NYC Pickleball Platform or any component thereof or the NYC Pickleball Spaces in any way; (ii) modify or make derivative works based upon the NYC Pickleball Platform or NYC Pickleball Spaces; (iii) create Internet “links” to, or “frame” or “mirror” the NYC Pickleball Platform or any component thereof on any other server or wireless or Internet-based device; (iv) reverse engineer the NYC Pickleball Platform or any component thereof, or access the NYC Pickleball Platform in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Site, NYC Pickleball Spaces or Application, or (c) copy any ideas, features, functions or graphics of the NYC Pickleball Platform or any component thereof or the NYC Pickleball Spaces, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the NYC Pickleball Spaces, the NYC Pickleball Platform or any component thereof.
You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violate third party privacy rights and material that could be considered as sexual or psychological harassment or of a discriminatory nature; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the NYC Pickleball Platform or NYC Pickleball Spaces or the data contained therein; or (v) attempt to gain unauthorized access to the NYC Pickleball Platform or NYC Pickleball Spaces or its related systems or networks.
NYC Pickleball will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. NYC Pickleball may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that NYC Pickleball has no obligation to monitor your access to or use of the NYC Pickleball Platform, NYC Pickleball Spaces or User Content or to review or edit any User Content, but has the right to do so for the purpose of operating the NYC Pickleball Platform or NYC Pickleball Spaces, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. NYC Pickleball reserves the right, at any time and without prior notice, to remove or disable access to any User Content that NYC Pickleball, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the NYC Pickleball Platform or NYC Pickleball Spaces.
10. SMS Messaging
Subject to obtaining your consent, NYC Pickleball may send you SMS messages in relation to your bookings and use of NYC Pickleball Spaces and for promotional purposes. Message and data rates may apply.
If you change your mobile phone service provider, you might have to re-enroll with NYC Pickleball in order to receive future SMS messages. NYC Pickleball reserves the right to stop sending SMS messages at any time; you may opt-out at any time by replying from your mobile phone to any text from NYC Pickleball with the word STOP, which opt-out will become effective within seven (7) days. It is important to note that opting out of SMS messaging may prevent you from receiving information necessary to properly use the NYC Pickleball service, such as room access codes and other important information.
11. Third Party Services
During use of the NYC Pickleball Platform and NYC Pickleball Spaces, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party service providers, advertisers or sponsors showing their goods and/or services through the NYC Pickleball Platform or NYC Pickleball Spaces. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. NYC Pickleball and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction, services or promotion between you and any such third party. NYC Pickleball does not endorse any sites on the Internet that are linked through the NYC Pickleball Platform or NYC Pickleball Spaces and in no event shall NYC Pickleball or its licensors be responsible for any content, products, services or other materials on or available from such sites or third-party providers. NYC Pickleball provides the NYC Pickleball Platform and NYC Pickleball Spaces to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and NYC Pickleball disclaims any and all responsibility or liability arising from such agreements between you and the third-party providers.
NYC Pickleball may rely on third party advertising and marketing supplied through the NYC Pickleball Platform or NYC Pickleball Spaces and other mechanisms to subsidize the NYC Pickleball Platform or NYC Pickleball Spaces. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If you do not want to receive such advertising, you must notify us in writing. NYC Pickleball reserves the right to charge you a higher fee for the NYC Pickleball platform or NYC Pickleball Spaces as the case may be, should you choose not to receive these advertising services. This higher fee, if applicable, will be posted on NYC Pickleball’s website located at http://NYC Pickleball.com. NYC Pickleball may compile, release and disclose non-identifiable information regarding you and your use of the NYC Pickleball Platform or NYC Pickleball Spaces as part of a customer profile or similar report or analysis, including, without limitation to third party service providers. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the NYC Pickleball Platform or NYC Pickleball Spaces.
12. Indemnity
You agree to release, defend, indemnify and hold harmless NYC Pickleball, applicable Building Owners, and their respective officers, directors, agents, subsidiaries, joint ventures, employees, tenants and third-party service providers, from all claims, demands, losses, liabilities, costs, expenses, obligations and damages of every kind and nature, known and unknown, including reasonable legal fees, arising out of (1) your improper use of or access to the NYC Pickleball Platform; (2) your violation of any provision contained in these Terms; (3) your violation of any law or the rights of a third party (including, without limitation, any copyright, intellectual property or privacy right); or (4) any claim that any content you submitted caused damage to a third party. You agree to notify NYC Pickleball and in writing of such claim. This indemnification obligation will survive the termination of these Terms and your use of the NYC Pickleball Platform.
13. Disclaimer
NYC Pickleball PROVIDES THE NYC Pickleball SPACES, THE NYC Pickleball PLATFORM AND ITS CONTENT, MATERIALS, INFORMATION, SOFTWARE AND PRODUCTS INCLUDED THEREIN INCLUDING SEPARATE SERVICES PERFORMED BY THIRD PARTIES UNDER CONTRACT FOR USE ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NYC Pickleball DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE NYC Pickleball PLATFORM, INCLUDING WITHOUT LIMITATION, (I) ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FEATURES, QUALITY, NON-INFRINGEMENT, TITLE, PERFORMANCE, COMPATIBILITY, SECURITY OR ACCURACY; AND THAT THE QUALITY OF THE NYC Pickleball SPACES, AS WELL AS ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE NYC Pickleball PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE NYC Pickleball PLATFORM AND NYC Pickleball SPACES, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT: (A) THE LOCKING MECHANISM, IF ANY, USED ON THE NYC Pickleball SPACES IS PROVIDED BY A THIRD PARTY, AND NYC Pickleball AND BUILDING OWNERS SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO ANY FAILURE OF THE LOCKING SYSTEM TO WORK IN ITS INTENDED MANNER, INCLUDING WITHOUT LIMITATION ANY LOSS OR THEFT OF YOUR PROPERTY; (B) THE NYC Pickleball SPACES ARE LOCATED IN BUILDINGS WHICH ARE NOT OWNED OR MANAGED BY NYC Pickleball, AND NYC Pickleball MAKES NO REPRESENTATIONS OR WARRANTIES RELATING THERETO. ADDITIONALLY, NYC Pickleball AND BUILDING OWNERS MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OF ANY NYC Pickleball SPACE FOR ANY PARTICULAR ACTIVITY NOR ANY ACTIVITIES THAT ARE CARRIED ON IN THE NYC Pickleball SPACES, AND SHALL NOT BE LIABLE IN ANYWAY FOR SUCH ACTIVITIES.
NYC Pickleball AND BUILDING OWNERS MAKE NO REPRESENTATION REGARDING THE WIFI ACCESSIBLE IN THE NYC Pickleball SPACES, INCLUDING WITH REGARD TO ACCESS THERETO.
NYC Pickleball DOES NOT WARRANT THAT THE NYC Pickleball PLATFORM WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR THAT THE NYC Pickleball PLATFORM WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS, OR THAT IT IS SAFE, SECURED FROM UNAUTHORIZED ACCESS, IMMUNE FROM DAMAGES, FREE OF MALFUNCTIONS, BUGS OR FAILURES, INCLUDING, BUT NOT LIMITED TO HARDWARE FAILURES, ORIGINATING EITHER FROM NYC Pickleball OR ITS PROVIDERS. NEITHER YOU NOR US SHALL HAVE ANY LIABILITY TO THE OTHER ARISING FROM CIRCUMSTANCES BEYOND OUR OR YOUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD OR NATURE, POWER, COMMUNICATIONS, SATELLITE OR NETWORK FAILURES, UNAUTHORIZED ACCESS OR THEFT, ACTS OF WAR OR TERROR; OR LABOR DISPUTES OR STRIKES.
14. Limitation of Liability
NYC Pickleball ITS OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, SUPPLIERS, SUB-CONTRACTORS, AGENTS AND BUILDING OWNERS, WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, ARISING FROM OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE SERVICES, OR FROM ANY FAULT, OR ERROR MADE BY OUR EMPLOYEES OR ANYONE ACTING ON OUR BEHALF, OR FROM YOUR RELIANCE ON THE CONTENT OF THE SERVICES, OR FROM ANY DENIAL OR CANCELLATION OF YOUR ACCOUNT, OR FROM THE RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT ON THE NYC Pickleball PLATFORM. IN NO EVENT SHALL NYC Pickleball’S, ITS LICENSORS’ OR ANY BUILDING OWNER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF (OR INABILITY TO USE) A NYC Pickleball SPACE, THE NYC Pickleball PLATOFRM EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO NYC Pickleball IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR THE AMOUNT OF FIFTY US DOLLARS WHICHEVER IS GREATER. YOU UNDERSTAND AND AGREE THAT YOU OBTAIN OR OTHERWISE DOWNLOAD CONTENT, MATERIAL OR DATA THROUGH OR FOR THE USE OF THE NYC Pickleball PLATFORM AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA AND/OR USE OF THE NYC Pickleball PLATFORM. IN ADDITION, NYC Pickleball DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA ITS WEBSITE OR THE NYC Pickleball PLATFORM IS ACCURATE, COMPLETE OR UP TO DATE.
Your use of the NYC Pickleball platform and NYC Pickleball Spaces may be subject to various local, state, national, or international laws, and you may have rights which vary from jurisdiction to jurisdiction. Because some jurisdictions may not allow limitations on warranties and/or the exclusion or limitation of damages, the limitations and/or exclusions found herein may not apply to you. Any provision found herein shall not be enforceable solely to the extent that it is prohibited by an applicable law.
RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING NYC Pickleball SPACES OFFERED VIA THE NYC Pickleball PLATFORM (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU. NYC Pickleball WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH NYC Pickleball SPACES, THEIR BUILDING OWNERS OR OTHER THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE NYC Pickleball AND BUILDING OWNERS, TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE NYC Pickleball PLATFORM OR NYC Pickleball SPACES, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE NYC Pickleball PLATFORM OR NYC Pickleball SPACES.
THE QUALITY AND SAFETY OF THE BUILDINGS IN WHICH THE NYC Pickleball SPACES ARE LOCATED ARE ENTIRELY THE RESPONSIBILITY OF THE BUILDING OWNERS. YOU UNDERSTAND THAT BY USING THE NYC Pickleball PLATFORM AND THE NYC Pickleball SPACES, YOU MAY BE EXPOSED TO LOCATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE NYC Pickleball PLATFORM AND THE NYC Pickleball SPACES AT YOUR OWN SOLE RISK.
TO THE EXTENT APPLICABLE UNDER LOCAL LAW, NOTHING IN THIS AGREEMENT SHALL LIMIT NYC Pickleball’S LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY NYC Pickleball’S GROSS NEGLIGENCE, OR (B) FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
15. Rating System
You may be required to rate certain aspects of your overall experience of the NYC Pickleball Spaces, which rating will be prompted through the NYC Pickleball Platform. If you do not participate in such rating when requested, NYC Pickleball reserves the right (without limiting any of NYC Pickleball’s other rights hereunder) to restrict your access to the NYC Pickleball Spaces. Additionally, if NYC Pickleball, or if other users, rate your usage of the NYC Pickleball Spaces as being below a threshold acceptable to NYC Pickleball, then we may in our sole discretion, and without limiting any of NYC Pickleball’s other rights hereunder, restrict your access to the NYC Pickleball Spaces.
16. Notices
NYC Pickleball may send you notices by means of email to your email address on record in NYC Pickleball’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in NYC Pickleball’s account information. You may give notice, and address any complaint or claim to NYC Pickleball (such notice, complaint or claim shall be deemed given when received by NYC Pickleball) at any time by means of email to hello@NYCPickleball.com.
17. Applicable Law; Jurisdiction and Disputes
These Terms are governed by and construed in accordance with the laws of New York State and the laws of the United States applicable therein, without regard to the conflicts of laws provisions thereof. The parties attorn to the jurisdiction of the courts of New York County, New York and agree that such courts shall have exclusive jurisdiction over any dispute arising hereunder or relating to NYC Pickleball. In the event of any dispute or claim arising hereunder or relating to NYC Pickleball, either you or us may elect to have such dispute determined by arbitration before a single arbitrator appointed by the American Arbitration Association OR JAMS. The location of any such arbitration proceeding shall be New York County, New York. IF ARBITRATION IS CHOSEN BY YOU OR US WITH RESPECT TO A CLAIM OR DISPUTE ARISING HEREUNDER, NEITHER YOU NOR US WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN PREARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES OR PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION OR JAMS, AS APPLICABLE. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT AND WITHOUT WAIVING EITHER PARTY’S RIGHT TO APPEAL SUCH DECISION, SHOULD ANY PORTION OF THIS SECTION 17 BE DEEMED INVALID OR UNENFORCEABLE, THEN THIS ENTIRE ARBITRATION SECTION 17 (OTHER THAN THIS SENTENCE) SHALL NOT APPLY
18. Termination
You agree that NYC Pickleball, in its sole discretion and for any or no reason, may terminate any member or customer Account (or any part thereof) you may have with NYC Pickleball or your use of NYC Pickleball Space, and remove and discard all or any part of your account or any of your User Content, at any time. NYC Pickleball may also in its sole discretion and at any time discontinue providing access to the NYC Pickleball Platform and NYC Pickleball Spaces, or any part thereof, with or without notice. You agree that any termination of your access to the NYC Pickleball Platform or NYC Pickleball Spaces, or t any Account you may have or portion thereof may be effected without prior notice, and you agree that NYC Pickleball shall not be liable to you for such action. These remedies are in addition to any other remedies NYC Pickleball may have at law or in equity.
You may terminate your Account at any time by deleting the Application from your device, ceasing all use of the NYC Pickleball Platform and NYC Pickleball Spaces and requesting NYC Pickleball to cancel your Account via email sent to hello@nycpickleball.com.
19. General
No joint venture, partnership, employment, or agency relationship exists between you, NYC Pickleball or any third-party provider as a result of these Terms or use of the NYC Pickleball Platform or NYC Pickleball Spaces. These Terms may not be assigned by you (whether in whole or in part) without the prior written approval of NYC Pickleball. These Terms may be assigned without your consent (in whole or in part) by NYC Pickleball, including to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of NYC Pickleball to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by NYC Pickleball in writing. These Terms comprise the entire agreement between you and NYC Pickleball and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
20. Disclaimer and Assumption of Risk
You declare that you have voluntarily chosen to use the NYC Pickleball Platform and NYC Pickleball Spaces. In doing so, you understand, acknowledge and agree that, despite NYC Pickleball’s effort to provide a safe environment, the use of NYC Pickleball Spaces during the COVID-19 pandemic exposes you to risks that may impact your physical and psychological health (and that of your family and those that come into contact with you). Specifically, the risks include contracting the virus causing COVID-19 which may cause serious bodily injury, including death, and cause, directly or indirectly, property damage and/or economic losses.
You acknowledge to follow and respect all preventive measures promulgated by government authorities and NYC Pickleball (“Measures”) to prevent the spread of COVID-19 and to inform NYC Pickleball immediately if you become aware that any person carrying the virus frequented the premises or that any of the Measures were breached.
You acknowledge that NYC Pickleball does not make any representations or warranties to the effect that the NYC Pickleball Spaces are exempt from the virus causing COVID-19 or that no person infected by the virus causing COVID-19 has recently frequented the NYC Pickleball Spaces. Therefore, subject to applicable laws, you hereby release, waive and renounce in favor of NYC Pickleball, its officers, directors, managers, members, shareholders, employees and agents (collectively, “NYC Pickleball Parties”) any and all liabilities, damages, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses (including reasonable legal fees), interest, penalties, obligations, reasonable costs or reasonable expenses of any and all investigations, proceedings, judgments and settlements (collectively, the “Losses”) sustained or incurred by you, directly or indirectly, relating to the virus causing COVID-19 (the “Released Claims”) and hereby grant to the NYC Pickleball Parties a complete, total and final release and discharge with respect to the Released Claims heretofore or hereafter arising. You agree that, to the extent permitted under applicable laws, NYC Pickleball shall have no liability whatsoever towards you or any of Your Guests, whether by contractual, extra-contractual, tort, or other means, for any direct, indirect, special, consequential, exemplary or punitive damages or for any other damages, lost profits or revenues, arising out of or relating to COVID-19.
You undertake to take responsibility and to defend and hold harmless the NYC Pickleball Parties from and against any and all Losses, resulting from, arising out of or otherwise by virtue of (i) your failure to comply with any of the Measures or (ii) your actions in contravention of these Terms.
DISCLOSURE, WAIVER AND RELEASE OF LIABILITY AGREEMENT (“AGREEMENT”)
PLEASE READ CAREFULLY. BY PARTICIPATING IN ANY NYC PICKLEBALL ACTIVITY, YOU ARE CONSENTING TO THE WAIVER AND RELEASE OF CERTAIN LEGAL RIGHTS, ACKNOWLEDGING YOUR EXPRESS ASSUMPTION OF RISK, AND AGREEING TO A COVENANT NOT TO SUE AS SET FORTH IN THIS AGREEMENT. THIS AGREEMENT ALSO INCLUDES AN ARBITRATION PROVISION AND A WAIVER OF YOUR RIGHT TO BRING A CLASS ACTION.
By participating in, or otherwise attending, a Pickleball exhibition, tournament, match, class, clinic, lesson, event, demonstration, practice, game and/or training (the “Activities”) organized and/or promoted by NYC Pickleball LLC (“NYC Pickleball”), you hereby agree to the following. If the individual participating in the Activity is a minor, the individual’s parent(s) or legal guardian(s), by registering the individual for the activity, makes the following representations on behalf of the individual.
I understand and acknowledge that: (i) the Activities may be hazardous to participant and others and that there are risks and dangers, including that of personal injury (including death), property damage or loss, and other hazards that could arise from or occur during the Activities; (ii) these risks and dangers include, but are not limited to, those arising from falls, collisions, being struck by paddles, balls, or other objects, bodily contact with the court, fence, other participants, or other barriers, and risks and dangers of illness arising from any communicable disease; and (iii) there may be other dangerous conditions or risks including, but not limited to, weather and/or related court conditions, and the conduct of other participants, instructors, vendors, entities, or individuals other than Releasees, over which Releasees may not have control,
I ACKNOWLEDGE THAT: (i) THE ACTIVITIES WILL INVOLVE PHYSICAL AND MENTAL EXERTIONS AND STRESSES, (ii) I AM VOLUNTARILY PARTICIPATING IN THEM ENTIRELY AT MY OWN RISK, and (iii) THE RISKS ASSOCIATED WITH THE ACTIVITIES MAY INCLUDE, BUT NOT BE LIMITED TO, INJURY FROM THE FACILITIES, TEMPERATURE, WEATHER, LACK OF HYDRATION, CONDITIONS OF PARTICIPANTS, EQUIPMENT, VEHICULAR AND PEDESTRIAN TRAFFIC, AND THE ACTION OF OTHERS, AND OTHER CONDITIONS OR INDIVIDUALS OVER WHICH RELEASEES HAVE NO CONTROL (SUCH AS, WITHOUT LIMITATION, OTHER PARTICIPANTS, VOLUNTEERS, SPECTATORS, COACHES, VENDORS, ACTIVITIES’: OFFICIALS, MONITORS, SPONSORS, OR ORGANIZERS). I UNDERSTAND THAT PHYSICAL, MENTAL, EMOTIONAL, REPUTATIONAL OR PSYCHOLOGICAL INJURY, PROPERTY DAMAGE AND ECONOMIC LOSS MAY RESULT. NOTWITHSTANDING THE FOREGOING, I ASSUME ALL RELATED RISKS, BOTH KNOWN OR UNKNOWN TO ME.
I, on behalf of myself, and any minor child on whose behalf this Agreement is executed hereby voluntarily and irrevocably and forever release, waive and discharge (and covenant not to sue) NYC Pickleball, The City of New York, The City of New York Department of Parks & Recreation, and their respective officials, employees, members, equity holders, subsidiaries, affiliates, parents, directors, officers, managers, partners, agents, successors and assigns (collectively, the “Releasees”) from or with respect to any and all claims, suits, causes of action and claims for damages including, but not limited to, claims arising out of or in connection with my death, personal injury, illness, temporary or permanent disability, suffering of short-term or long-term health effects, economic loss, out of pocket expenses, or loss of or damage to property (“Losses”), which I, any minor child on whose behalf this Agreement is executed, may have or hereafter accrue against any of the Releasees as a result of or that relate in any way to (i) my participation in the Activities; (ii) my travel to or presence to the Activities or (iii) any of the risks or dangers identified above, each of which I have knowingly and voluntarily assumed and legal recourse for which I have knowingly, voluntarily and irrevocably waived, in each case whether caused by any action, inaction, fault, misconduct, or negligence of any of the Releasees or otherwise, excepting only those Losses caused by the willful misconduct or gross negligence of the Releasees. I further agree to defend and indemnify the Releasees from and against any and all claims, suits, actions, actions and legal proceedings that may be instituted on Participant’s or my behalf.
In the event that I should require medical care or treatment, I agree to be financially responsible for any costs incurred as a result of such treatment and understand that the Releasees do not assume any responsibility for or obligation to provide financial assistance or other assistance, including but not limited to medical, health, or disability insurance in the event of injury or illness. I am aware and understand that I should carry my own health insurance and any other insurance I deem necessary to participate in the Activity, and that I am solely responsible for any and all medical expenses due to bodily injury, illness, disability, death, property damage and other harm in connection with the Activities. In the event that any damage to equipment or facilities occurs as a result of my willful actions, neglect or recklessness, I acknowledge and agree to be held liable for any and all costs associated with any actions, neglect or recklessness. I do hereby release and forever discharge the Releasees from any claim whatsoever which arises or may hereafter arise on account of any first aid, treatment, or service rendered in connection with my participation in the Activities.
I do hereby grant and convey all right, title, and interest in any and all photographic images and video or audio recordings made of me by the Releasees during the Activities including, but not limited to, any royalties, proceeds, or other benefits derived from such photographs or recordings, whether for commercial or non-commercial use. To the fullest extent permitted by law, acknowledgment of this release and waiver of liability and in consideration for participation in the Activities, I hereby grant to the Releasees, their licenses, designees, successors and assigns, a worldwide, perpetual, irrevocable, fully-paid royalty free, assignable license to use, copy, and disseminate my image and personal attributes and to modify and present same in any form, manner, and media, now known or hereafter devised for any purpose whatsoever.
I expressly agree that this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York without regard to choice of law principles, and is intended to be as broad and inclusive as is permitted by the laws of New York. If any portion of this Agreement is held invalid, illegal, or unenforceable to any extent and for any reason by any court of competent jurisdiction, such portion will be excluded to the extent of such invalidity or unenforceability; all other terms of this Agreement will remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
I agree to submit any dispute arising under this Agreement to binding arbitration pursuant to American Arbitration Association rules. I further agree that (i) the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law; (ii) judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction; (iii) the award may be vacated or modified only on the grounds specified in applicable rules and laws; and (iv) any arbitration conducted pursuant to this Agreement shall take place in New York, New York. In agreeing to submit all disputes for resolution by arbitration, I acknowledge that such agreement is given in exchange for rights or benefits to which I am not otherwise entitled and the more expeditious and confidential resolution of any such disputes.
I agree that all claims must be pursued on an individual basis only. By signing this Agreement, I hereby waive my right to commence, or be a party to, any class or collective claims against the Releasees.
I have carefully read this Agreement and fully understand its terms and that I am hereby giving up substantial legal rights. I further agree that no oral representations, statements, or inducements contrary to anything contained herein have been made by Releasees. I further understand that I may consult an attorney about this Agreement. I expressly agree to release and discharge, indemnify and hold harmless, the Releasees, from any and all claims or causes of action, suits, actions or judgments of any kind whatsoever for liability, damages, compensation, equitable relief or otherwise, brought by me or anyone on my behalf, including claims or awards of attorney’s fees, statutory interest, sanctions and any related costs and I agree to voluntarily give up or waive any right that I otherwise have to bring a legal action of any kind against the Releasees for personal injury or property damage.