THESE TERMS AND CONDITIONS OF USE (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND THE COMPANY. THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE WEBSITES OWNED BY THE COMPANY. SUCH WEBSITES ARE CURRENTLY LOCATED AT THE FOLLOWING URLS (COLLECTIVELY, THE “SITES” OR “WEBSITES”):
UNLESS OTHERWISE SPECIFIED, ALL REFERENCES TO “SITES” INCLUDE THE CONTENT, SERVICES AVAILABLE THROUGH THE SITES (THE “SERVICES”) AND ANY SOFTWARE THAT THE COMPANY PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE SITES FROM A MOBILE DEVICE. BY USING THE SITES, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SITES, ANY SERVICES AVAILABLE THROUGH THE SITES OR ANY INFORMATION CONTAINED ON THE SITES.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
The Company may make changes to the content and Services offered on the Sites at any time. The Company can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on the Sites. By using the Sites after the Company has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Sites.
By using the Sites, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Sites with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Sites and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless the Company if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Sites at any time or in any manner or submit any information to the Company or the Sites.
The Company provides content through the Sites and through the Services that is copyrighted and/or trademarked work of the Company or the Company’s third-party licensors and suppliers or other users of the Sites (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to these Terms, and your compliance with these Terms, the Company hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use the Sites solely for your personal use. Except for the foregoing license, you have no other rights in the Sites or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Sites or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
The Company makes available Mobile Applications to access the Sites via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. The Company does not warrant that the Mobile Application will be compatible with your mobile device. The Company hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that the Company may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and the Company and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and the Company only, and not with Apple, Inc. (“Apple”).
- Your use of the Company’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- The Company, and not Apple, are solely responsible for our iOS App and the Services and Materials available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that the Company, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that the Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the Company’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and the Company only, and not with Google, Inc. (“Google”).
- Your use of the Company’s Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. The Company, and not Google, are solely responsible for the Company’s Android App and the Services and Materials available thereon. Google has no obligation or liability to you with respect to the Company’s Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Company’s Android App.
Using the Sites and the Services on the Sites.
You can simply view the Sites, purchase tickets and not use any other Services on the Sites. You need not register with the Company to simply visit and view the Sites and purchase tickets.
Password Restricted Areas of the Sites.
Desert Champions may create features that requires an account registration. If you desire to register for an account with the Company, you must submit the following information through the account registration page on the Sites: name and email address. You will also have the ability to provide additional optional information, which is not required to register for an account but may be helpful to the Company in providing you with a more customized experience when using the Sites or its Services. Once you have submitted your account registration information, the Company administrator shall have the right to approve or reject the requested registration, in the Company administrator’s sole discretion. If your account is approved by the Company administrator, you will be sent an e-mail that contains a password that will allow you to log-on to the Sites using that password (the “Password”) for the first time you log into your account on the Sites to complete the account registration process.
You are responsible for maintaining the confidentiality of your Password, and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password. You agree to notify the Company if your Password on the Sites is lost, stolen, if you are aware of any unauthorized use of your Password on the Sites or if you know of any other breach of security in relation to the Sites.
All the information that you provide when registering for an account and otherwise through the Sites must be accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes or contacting the Company using the contact information at the end of these Terms requesting that we make the change.
ALL TICKET SALES ARE FINAL – NO REFUNDS/CREDITS – NO RETURNS – NO EXCHANGES – under any circumstance. A reasonable effort will be made to accommodate ticket holder at a subsequent session if the session for which this ticket is issued is postponed or canceled due to weather or other causes beyond our control. The session time, duration and date are subject to change without prior notice. Ticket holder agrees to submit to security checks prior to, or during entry or within the Indian Wells Tennis Garden (“IWTG”). SMOKING IS PROHIBITED AT THE IWTG. THIS INCLUDES ALTERNATIVE SMOKING DEVICES SUCH AS ELECTRONIC AND/OR VAPOR.
This ticket constitutes a revocable license for the specific session for which it is issued. No seat license or guaranteed seating location is created hereby for other sessions in this Event or other Events. We reserve the right to refuse admission and service to anyone and to relocate, remove and/or evict anyone not cooperating with Event/Stadium staff or not complying with the rules and regulations of the IWTG or otherwise engaging in illegal, disruptive, or dangerous behavior. RESALE OF THIS TICKET AND ANY ACCOMPANYING PARKING PASS IS PROHIBITED. If offered for resale, this ticket and/or parking pass may be seized and canceled without compensation. Tickets obtained from sources other than directly from the IWTG Box Office or the Event’s official website may be stolen or counterfeit and, if so, are void and will not be honored. If this ticket is lost, the original purchaser with proof of purchase may replace this ticket for a fee. Each ticket carries a unique barcode. All tickets must have a valid barcode for admittance. The first ticket presented with this barcode will be considered valid and all others will be rejected and entry denied its holder. DO NOT DUPLICATE. We are not responsible for any inconvenience, damage or loss caused by unauthorized duplication. Ticket holder may not (i) continually collect, disseminate, transmit, publish or release from the IWTG any match scores or related statistical data during match play (from the commencement of a match through its conclusion for any commercial, betting or gambling purpose) and/or (ii) film, photograph, broadcast, stream, publish, transmit and/or otherwise offer to the public (or assist any third party in offering to the public), on a live or on a delayed basis, in whole or in part, and whether on a free basis or subject to payment, any sound recording, photograph, video footage, motion picture, film and/or other audio-visual content captured by any means whatsoever inside the IWTG (except as is allowed in the ATP Tour Tournament Accreditation Policy). The continual use of laptop computers or other handheld electronic devices within the confines (spectator area) of the Event match courts is prohibited. The exception to this provision is properly credentialed media, Event vendors and Event staff when used in the performance of their duties. Ticket holder may use cameras, including phone cameras, without a flash, to capture photos/videos for personal and private, non-commercial use.
Ticket holder grants permission and gives consent to the owner, manager and/or promoter of the Event, and any of their designees, to (a) record, stream, videotape and photograph ticket holder at the Event and (b) utilize ticket holder’s name, likeness, image, voice, writings and other identification in any manner, in and on any media, in perpetuity and without payment or approval, including (for example) in any and all: still pictures of/from the Event; live or recorded television, radio, wireless, or internet transmissions of the Event; and in general promotion of the Event and the owner, manager and/or promoter of the Event.
Ticket holder voluntarily ASSUMES ALL RISKS and DANGERS incidental to being at the IWTG as a spectator at the Event. Ticket holder agrees that the owner, manager, and/or promoter of the Event, the owner and manager of the IWTG, and each of their respective members, agents and affiliates, the players, participants, officials, sponsors, vendors, suppliers, volunteers, and/or performers for the Event (collectively, the “IWTG Parties”) are not responsible or liable for any injury, loss, or damage occurring out of or incidental to the Event or ticket holder’s presence at the IWTG and any adjacent properties used for the Event.
PRICE IS INCLUSIVE OF HANDLING FEE AND CITY TAX
Links to Third-Party Sites.
When using the Sites and/or the services, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Sites.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on the Sites.
- Post anything clearly false or misleading.
- Post anything unrelated to our business, products or services.
- Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.
This list of prohibitions provides examples and is not complete or exclusive. The Company reserves the right to (or use the Services) with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to the Sites or to any other user of the Sites and/or Services. The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Sites or on the Internet.
You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of the Sites violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
“Desert Champions” is a trademark of the Company in the United States. Other trademarks, names and logos on the Sites are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on the Sites, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of the Company Copyright © Desert Champions LLC. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
The Mobile Application software that is provided to you through the Sites and Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Intellectual Property Infringement.
The Company respects the intellectual property rights of others, and we ask you to do the same. The Company may, in appropriate circumstances and at our discretion, terminate service and/or access to the Sites for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide the Company’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Sites, and information reasonably sufficient to permit the Company to locate the material.
- Information reasonably sufficient to permit the Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Company’s agent for notice of claims of copyright or trademark infringement on the Sites can be reached as follows:
Desert Champions LLC
78-200 Miles Avenue
Indian Wells, CA 92210
Email: [email protected]
Facsimile: (760) 200-8441
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to the Company’s designated agent that includes all of the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which the Company may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
The Company reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
Disclaimer of Warranties.
Your use of the Sites and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors. The Company does not warrant the accuracy of timeliness of the Materials contained on the Sites. The Company has no liability for any errors or omissions in the Materials, whether provided by the Company, our licensors or suppliers or other users.
THE COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITES, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITES, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SITES IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability.
THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE SITES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL COMPANY’S LIABILITY EXCEED THE GREATER OF $100 AND THE AMOUNTS YOU PAY THE COMPANY FOR USE OF, OR IN CONNECTION WITH, THE SITES.
Local Laws; Export Control.
The Company controls and operates the Sites from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use the Sites outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Sites, any Services offered through the Sites or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and the Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that The Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver (the “Provision”).
Please read the following carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at [email protected] This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and the Company. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and the Company shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, the “Company” means Desert Champions LLC and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding, arising out of or relating to any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give the Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Desert Champions LLC, 78-200 Miles Avenue, Indian Wells, CA 92210, Attention: Data Protection Officer or contacting our Data Protection Officer via Facsimile at (760) 200-8441 or via email at [email protected] That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If the Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or the Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Desert Champions LLC, 78-200 Miles Avenue, Indian Wells, CA 92210, Attention: Data Protection Officer or contacting our Data Protection Officer via Facsimile at (760) 200-8441 or via email at [email protected] Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with the Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with the Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Because the Sites and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or the Company may initiate arbitration in either Riverside County, California or the federal judicial district that includes your billing address.
Payment of Arbitration Fees and Costs – The Company will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with the Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and the Company specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Sites can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into these Terms you and the Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and the Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with the Company or its affiliates. Notwithstanding any provision in these Terms to the contrary, we agree that if the Company makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require the Company to adhere to the present language in this Provision if a dispute between us arises.
The Parties hereto have expressly required that these Terms and all documents and notices relating thereto be drafted in the English language.
The Company prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by the Company, may result in immediate termination of your access to the Sites without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Sites will be heard in the courts located in Riverside County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. The Company’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and the Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and the Company about the Sites. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
California Consumer Notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Sites and Service are provided by Desert Champions LLC. If you have purchased anything from the Sites or through the Service, a description of what you have purchased and relevant pricing information are posted as part of the ordering process for the Sites (please consult your individual purchase confirmation e-mail for the charges you incurred). You may contact us by writing Desert Champions LLC, 78-200 Miles Avenue, Indian Wells, CA 92210, Attention: Data Protection Officer or via Email at [email protected] or via Facsimile at (760) 200-8441. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If you have any questions about these Terms or otherwise need to contact the Company for any reason, you can reach us at Desert Champions LLC, 78-200 Miles Avenue, Indian Wells, CA 92210, Attention: Data Protection Officer or via Email at [email protected] or via Facsimile at (760) 200-8441
Last updated: June 30, 2020
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