Last Updated: March 5, 2019
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 18.2, you agree that disputes between you and BallerTV arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND BALLERTV ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 18).
Service Overview. The Service provides a platform for users to access, view, stream and upload live or pre-recorded sporting events.
Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address, Facebook login information or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at https://support.baller.tv.
General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
Price. BallerTV reserves the right to determine pricing for the Service. BallerTV will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. BallerTV may change the fees for any feature of the Service, including additional fees or charges, if BallerTV gives you advance notice of changes before they apply. BallerTV, at its sole discretion, may make promotional offers with different features and different pricing to any of BallerTV’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
Authorization. You authorize BallerTV to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by BallerTV, to the payment method specified in your account. If you pay any fees with a credit card, BallerTV may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize BallerTV to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The fee applicable to any Subscription Service shall be as set forth on https://www.ballertv.com/premium “Subscription Fee.” Your account will be charged all applicable fees for the next subscription period automatically on the Subscription Billing Date. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service as set forth on https://bit.ly/2MA8sTG. Any cancellation of your subscription shall be effective upon the end of the then current subscription period.
Refunds, Returns & Exchanges. BallerTV does not issue refunds for digital subscriptions once the order is received and a video has been viewed in part or whole. Once access is granted to digital goods including, but not limited to, video recordings, live video, still images and audio recordings, all purchases become final and no refunds will be issued. Cancellation of the Service does not entitle you to a prorated or partial refund of any kind.
Delinquent Accounts. BallerTV may suspend or terminate access to the Service for any account for which any amount is due but unpaid.
Limited License. Subject to your complete and ongoing compliance with these Terms, BallerTV grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace on a mobile device that you own or control; and (ii) access and use the Service.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant BallerTV an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
Ownership; Proprietary Rights. The Service is owned and operated by BallerTV. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), text, broadcasts, streams, images, videos, audio recordings, music, audiovisual combinations, products, software, services, downloadable content whether or not downloaded by you, and all other elements of the Service (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in, or made available on the Service are the property of BallerTV or our third-party licensors. Any Materials made available to you via the Service may be accessed for your internal, personal, non-commercial use only. Unless expressly authorized by BallerTV, you may not be reproduce, distribute, modify, publicly perform, use in connection with any commercial purpose, or make any other use of the Materials. BallerTV reserves all rights to the Materials not granted expressly in these Terms.
Downloadable Content. You acknowledge and agree that, in addition to all other applicable terms and conditions herein, if BallerTV permits you, through features made available to you on the Service, to download any Materials, you will: (i) comply with all limitations and restrictions on those features and the use of those Materials, including limits on the number of downloads you can make; and (ii) use those Materials: (a) solely for your own personal and internal purpose and use, and not in connection with any commercial purpose; and (b) only as expressly permitted by these Terms or BallerTV. Uploading or otherwise transferring Materials acquired from BallerTV to other companies, websites, apps, and/or services that seek to commercialize the Materials is strictly prohibited.
Commercial License Exception. An exception for commercial use of downloadable content is made in the event that the user receives express, specific written consent from BallerTV. For more information on commercialized licenses, please contact BallerTV Support.
Mobile Devices and Data Charges. Please be aware that your cellular carrier may charge fees in connection with your use of the Service. You are responsible for any mobile charges that you may incur in connection with using our Services, including data charges. If you are not sure what those charges may be, you should ask your service provider before using the Services.
Personal Safety. USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. YOU ARE STRONGLY ENCOURAGED TO USE EXTREME CAUTION WHEN SHARING PERSONALLY IDENTIFIABLE INFORMATION WITH OTHER USERS OR ARRANGING TO MEET OTHER USERS IN PERSON. BALLERTV DOES NOT PERFORM CRIMINAL BACKGROUND CHECKS ON ITS USERS NOR CAN IT VERIFY THE TRUTH OR ACCURACY OF USERS’ PROFILES ON THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE, PARTICULARLY IF YOU DECIDE TO MEET IN PERSON.
User Content Generally. Certain features of the Service may permit users to upload, broadcast, post or otherwise submit content, including data, information, messages, chat feed comments, photos, music, video, audiovisual combinations, video streams, images, text, audio and any other types of works (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
License Grant to BallerTV. By uploading, broadcasting, posting, publishing or submitting User Content, you grant BallerTV a perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, stream, transfer, transmit, display, perform, reproduce, modify, prepare derivative works of and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of your User Content by BallerTV may be without any compensation paid to you. In connection with exercise of the rights granted by you to BallerTV hereunder, you agree that BallerTV may use, and license others to use, your name, voice, image, and likeness in any manner which BallerTV wishes in any and all media now known, including in advertising and other promotional materials, press releases, various channels on the internet, third party social media websites, and mobile applications, throughout the world in perpetuity. You hereby waive any right of approval of your appearance or the uses thereof. You hereby waive any rights to privacy or publicity you may have in connection with such appearance. You acknowledge that BallerTV will rely on this permission, potentially at substantial cost to BallerTV, and hereby agree not to assert any claim of any nature whatsoever against anyone relating to the exercise of the permissions granted hereunder.
Limited License Grant to Other Users and Other Authorizations.. By posting and sharing User Content with another user of the Service, or otherwise making User Content available to another user of the Service, you hereby grant that user a non-exclusive license to access, use, display, perform, reproduce, modify and transmit such User Content as permitted by these Terms and the functionality of the Service. You acknowledge that, in connection with your participation in or use of the Service, you may appear in User Content published by another user (e.g. if your teammate decides to live stream your sporting event, you may appear in a live video stream of such sporting event published by your teammate via the BallerTV platform). You agree that any such user may use your name, voice, image, and likeness in connection with the exercise of the rights granted by you to other users of the Service under this Section 10.3, and you hereby waive any rights of privacy and publicity you may have in connection with such appearance.
User Content Representations and Warranties. BallerTV disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize BallerTV and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 10 and in the manner contemplated by BallerTV, the Service and these Terms;
your User Content, and the use your User Content as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, or libel any third-party; or (iii) cause BallerTV to violate any law or regulation; and
your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. BallerTV may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable right or remedy you have or may have against BallerTV with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, BallerTV does not permit copyright-infringing activities on the Service.
Sponsored Content.The foregoing provisions and obligations set forth in this Section 10 shall apply with equal force to any User Content that you submit that includes advertorials, native advertising, or sponsorship (“Sponsored User Content”). Without limitation, any and all of your representations, warranties, indemnification obligations and other obligations under these Terms apply equally to Sponsored User Content as they would to any other User Content that you submit to the Service. You are solely responsible for ensuring that your Sponsored User Content complies with all applicable federal, state and local laws, rules and regulations. BallerTV assumes no liability for any Sponsored User Content, or for any product or service offered by or through Sponsored User Content. You are solely liable for Sponsored User Content that you submit to the Service and all portions of it, including any sponsored products or services, and for any other consequences of transmissions of Sponsored User Content through the Service.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
766 E Colorado Blvd #200
Pasadena, CA 91101
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. BallerTV will promptly terminate, without notice, the accounts of users that are determined by BallerTV to be “repeat infringers.”
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property rights;
post, upload, broadcast, publish, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
post, upload, broadcast, publish, or distribute any User Content or other content that would lead a reasonable person to believe that BallerTV approves of, is affiliated with, or endorses any: (i) User Content; (ii) any third party; or (iii) any third party’s products or services without BallerTV’s prior express authorization;
falsify game scores or competition outcomes, or collude with others to do the same;
interfere with security-related features of the Service, including without limitation by: (i) disabling or circumventing features that prevent or limit use, downloading or copying of any Materials; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by: (i) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) attempting to collect, personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Material;
share or otherwise transfer unique access credentials provided to you (as defined in Section 12);
use the Service or any Materials in connection with any commercial purpose;
perform any fraudulent activity including impersonating any person or entity, claiming false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth; or
attempt to do any of the foregoing acts described in this Section 12, or assist or permit any person in engaging, or attempting to engage in, any of the acts described in this Section 12.
Third-Party Services and Linked Websites. BallerTV may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on BallerTV with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
Third Party Software. The Service may now, or in the future include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
Term, Termination and Modification of the Service
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.
Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, BallerTV may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. Subject to Section 4.3, you may terminate your account and these Terms by contacting customer service at https://ballertv.com/support. If you have an active Subscription Service when you terminate your account, your Subscription Service shall be cancelled in accordance with Section 4.3.
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay BallerTV any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4, 5.3, 6, 10, 14.3, 15, 16, 17, 18, and 20 will survive.
Modification of Service. BallerTV reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. BallerTV will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless BallerTV and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “BallerTV Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to, use of, or alleged use of the Service; (ii) your violation of any portion of these Terms or any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right or publicity, confidentiality, other property or privacy right; or (iv) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to the Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service, subject to Section 12 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE BALLERTV ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF THE COURSE OF DEALING, USAGE, OR TRADE. THE BALLERTV ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE BALLERTV ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE BALLERTV ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE BALLERTV ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. UNDER NO CIRCUMSTANCES WILL BALLERTV BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR PERSONS YOU MEET THROUGH THE SERVICE.
EXCEPT AS PROVIDED IN SECTION 18.4(c), YOU AGREE THAT THE AGGREGATE LIABILITY OF THE BALLERTV ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO BALLERTV FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIMS; OR (B) FIFTY DOLLARS ($50 USD).
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and BallerTV in the most expedient and cost effective manner, you and BallerTV agree that any and all disputes arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BALLERTV ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 18.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and BallerTV will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BallerTV.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or only if that other party has not provided a current physical address, then by electronic mail ("Notice").BallerTV’s address for Notice is: Baller, Inc., 766 E Colorado Blvd #200, Pasadena, CA 91101. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or BallerTV may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BallerTV must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, BallerTV will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by BallerTV in settlement of the dispute prior to the arbitrator’s award; or (c) $10,000.
Fees. In the event that you commence arbitration in accordance with these Terms, BallerTV will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco, California provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse BallerTV for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND BALLERTV AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BallerTV agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. In the event that BallerTV makes any future change to this arbitration provision (other than a change to BallerTV’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to BallerTV’s address for Notice, in which case your account with BallerTV will be immediately terminated in accordance with Section 14.2, and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Enforceability. If Section 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 20.1 will govern any action arising out of or related to these Terms.
Modification of the Terms. BallerTV reserves the right to update or modify the Terms on a going-forward basis at any time without prior notice, and such changes will be effective immediately upon being posted to the Service, except as set forth below. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Service. Modifications requiring your acceptance are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of the Terms that was in effect at the time the dispute arose.
Governing law. These Terms will be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under these Terms, you and BallerTV agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to the Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Service, subject to Section 6 above. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
Notice Regarding Apple. This Section 21 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and BallerTV only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and 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 a third party beneficiary of these Terms. You hereby 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.
Last Updated: July 7, 2017
Information We Collect on the Service:
We may also automatically record certain information from your device by using various types of technology, including “clear gifs" or “web beacons.” This automatically collected information may include your IP address or other device address or ID, web browser and/or device type, the web pages or sites that you visit just before or just after you use the Service, the pages or other content you view or otherwise interact with on the Service, and the dates and times that you visit, access, or use the Service. We also may use these technologies to collect information regarding your interaction with email messages, such as whether you opened, clicked on, or forwarded a message. This information is gathered from all users, and may be connected information about you.
How We Use the Information We Collect. We use information we collect on the Service in a variety of ways in providing the Service and operating our business, including the following:
When We Disclose Information. Except as described in this Policy, we will not disclose information about you that we collect on the Service to third parties without your consent. We may disclose information to third parties if you consent to us doing so, as well as in the following circumstances:
You may, of course, decline to share certain information with us, in which case we may not be able to provide to you some of the features and functionality of the Service. You may update, correct, or delete your account information and preferences at any time by accessing your account preferences page on the Service. If you wish to access or amend any other personal information we hold about you, you may contact us at firstname.lastname@example.org. Please note that while any changes you make will be reflected in active user databases within a reasonable period of time, we may retain all information you submit for backups, archiving, prevention of fraud and abuse, analytics, satisfaction of legal obligations, or where we otherwise reasonably believe that we have a legitimate reason to do so.
If you receive commercial email from us, you may unsubscribe at any time by following the instructions contained within the email. You may also opt-out from receiving commercial email from us, and any other promotional communications that we may send to you from time to time, by sending your request to us by email at email@example.com or by writing to us at the address given at the end of this policy. We may allow you to view and modify settings relating to the nature and frequency of promotional communications that you receive from us in user account functionality on the Service.
Please be aware that if you opt-out of receiving commercial email from us or otherwise modify the nature or frequency of promotional communications you receive from us, it may take up to ten business days for us to process your request, and you may continue receiving promotional communications from us during that period. Additionally, even after you opt-out from receiving commercial messages from us, you will continue to receive administrative messages from us regarding the Service.
The Service may contain features or links to websites and services provided by third parties. Any information you provide on third-party sites or services is provided directly to the operators of such services and is subject to those operators’ policies, if any, governing privacy and security, even if accessed through the Service. We are not responsible for the content or privacy and security practices and policies of third-party sites or services to which links or access are provided through the Service. We encourage you to learn about third parties’ privacy and security policies before providing them with information.
Protecting the privacy of young children is especially important. Our Service is a general audience service not directed to children under the age of 13, and we do not knowingly collect personal information from children under the age of 13 without obtaining parental consent.
We use certain physical, managerial, and technical safeguards that are designed to improve the integrity and security of information that we collect and maintain. Please be aware that no security measures are perfect or impenetrable. We cannot and do not guarantee that information about you will not be accessed, viewed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.
The Service is hosted in the United States and is intended for visitors located within the United States. If you choose to use the Service from the European Union or other regions of the world with laws governing data collection and use that may differ from U.S. law, then please note that you are transferring your personal information outside of those regions to the United States for storage and processing. Also, we may transfer your data from the U.S. to other countries or regions in connection with storage and processing of data, fulfilling your requests, and operating the Service. By providing any information, including personal information, on or to the Service, you consent to such transfer, storage, and processing.
Changes and Updates to this Policy
Please revisit this page periodically to stay aware of any changes to this Policy, which we may update from time to time. If we modify this Policy, we will make it available through the Service, and indicate the date of the latest revision. In the event that the modifications materially alter your rights or obligations hereunder, we will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Service for the first time after such material changes are made. Your continued use of the Service after the revised Policy has become effective indicates that you have read, understood and agreed to the current version of this Policy.
How to Contact Us
Please contact us with any questions or comments about this Policy, information we have collected or otherwise obtained about you, our use and disclosure practices, or your consent choices by email at firstname.lastname@example.org.
766 E Colorado Blvd, #200
Pasadena, CA 91101