Last Updated: 03-03-2022
Welcome, and thank you for your interest in Ticket Hoss developed by Pit Pay Inc. (“Ticket Hoss,” “we,” or “us”) and our mobile application and website at www.tickethoss.com, along with our App (defined below), related websites, networks, applications, and other services provided by us (collectively, the “Service”). These Terms (defined below) are a legally binding contract between you and Ticket Hoss regarding your use of the Service. These Terms contain waivers, limitations of liability, and indemnification provisions for the benefit of Ticket Hoss, as well as for the benefit of certain other third parties related to Events (defined below) or Venues (defined below) for which you are using the Service (see Section 3 below).
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND PIT PAY 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.)
1. TICKET HOSS SERVICE OVERVIEW
1.1 General Overview. Ticket Hoss makes available a mobile app called “Ticket Hoss” (the “App”) that provides a simple way for operators (“Operators”) of participating race tracks, recreational facilities, and other participating venues (each a “Venue”) to grant you a revokable license for authorized entrance (a “Ticket”) to allow you to attend activities and events held at the Venues (each, an “Event”). Ticket Hoss provides the App and related services to Operators to manage the purchase of Tickets by Event attendees (each, an “Attendee”). If you purchase a Ticket through the App, you must have your phone with you to display the Ticket to enter a Venue.
1.2 Disclaimer. Ticket Hoss itself is not the owner or operator of any Venues and each Operator is solely responsible for making sure all of its Events comply with all applicable laws. Ticket Hoss makes no representations or warranties as to the quality, safety, or legality of any Event or Venue.
You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from any part of the Service; and (c) your registration for and your use of the Service is in compliance with any and all applicable laws and regulations. If you have been permanently barred from entering a Venue or are currently suspended from a Venue, you may not purchase a Ticket for that Venue through the App.
3. ASSUMPTION OF RISK AND TERMS OF REVOCABLE SEAT LICENSE
3.1 Your use of the App is specifically conditioned on your agreement to, in addition to the other terms in the Terms, the following Assumption of Risk and Revocable Seat License. Also, by your acceptance and/or use of a Ticket for the Event at the Venue, the Ticket Holder (“Holder”), on behalf of himself/herself and any minor(s) accompanying Holder (“Minor”), agrees to the terms contained herein. Holder and Minor together are referred to herein as (“Releasors”).
WARNING: Releasors acknowledge and assume all risks and dangers associated with the Event or any other promotions or activities before, during or after the Event (“Event Activities”), acknowledge that attendance is voluntary, and further agree that Ticket Hoss, Operator, Venue, promoters, participants, racing associations, sanctioning organizations, or any subdivision thereof, track owners, officials, competition vehicle owners, drivers, pit crews, rescue personnel, sponsors, advertisers, owners and lessees of the Venue, premises and event inspectors, and all related entities and affiliates, together with their respective owners, officers, directors, employees, agents, licensees, sponsors, and vendors (collectively, the “Released Parties”), will not be responsible for any personal injury (including death), illness, property damage, or other loss suffered in connection with the Event Activities, including the negligence of any of the Released Parties or any other incidents caused by the Event Activities or crowds of people. By attending the Event Activities, Releasors are deemed to have given a full release of liability to the Released Parties to the fullest extent permitted by law from any and all claims which Releasors have or may have for causes of action arising out of attendance at, observation of and/or participation in the Event Activities.
ILLNESS: Releasors acknowledge and understand that the Released Parties, and in particular the Venue and the Event Activities organizers, abide by all applicable federal, state and local guidelines and orders relating to the Venue and/or Event Activities, including without limitation preventative measures put in place to reduce the spread of COVID-19; however, the Released Parties cannot and will not guarantee that any persons present or in attendance at the Venue or Event Activities will not become exposed to or infected with COVID-19 or any other communicable disease or illness, some of which may carry a risk of suffering severe personal injury and/or death, despite reasonable efforts to mitigate such dangers. In addition to the Ticket Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement stated above, Releasors hereby release, waive, discharge and covenant not to sue the Released Parties from all liability to the Releasors, including Releasors’ personal representatives, assigns, heirs, and next of kin, for any and all loss or damage, and any claim or demands therefor, on account of Releasors contraction of any communicable illness or disease, including COVID-19, arising out of or in any way related to the Venue, the Event Activities and/or Releasors’ attendance at the Event Activities, whether caused by the negligence of the Released Parties or otherwise.
REVOCABLE TICKET LICENSE
HOLDER’S CONDUCT. The revokable license granted by any Ticket will be terminated, and ejection, detention or arrest may result for any Releasor violating any law or any Operator or Venue policy, including entering or throwing anything onto the racing surface, offensive language or disruptive behavior. Releasors consent to health and security searches and/or screening and waive all related claims, and also consent to health-related conditions for attendance, including any requirements pertaining to the wearing of masks and/or social distancing. The resale of any Ticket in violation of applicable law, regulation or the policies of the Operator or Venue, and/or their designated agents will invalidate the license granted by such Ticket and Releasors assume all risks associated with the purchase of any Ticket from unauthorized sources.
Releasors shall at all times abide by any and all rules, regulations, restrictions, guidelines and/or policies of any of the Released Parties while at the Venue, including any area of the Venue requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited (the “Restricted Areas”). The Releasors further hereby agree to reimburse the Released Parties for any and all reasonable expenses incurred by the Released Parties as a result of any damage caused by Releasors while at the Venue and/or in Restricted Areas.
REJECTION AND EJECTION. Those found to be in violation of this Code of Conduct may be subject to ejection without refund. Violations may result in the loss of ticket renewal privileges to future events and/or arrest.
MINOR INVITEES. Should Holder bring Minor(s) to the Event Activities (and such Minor(s) is permitted to enter the Event Activities), Holder hereby acknowledges and agrees that the Released Parties shall not be responsible for the care and safety of Minor(s) at the Event. Holder assumes the responsibility of watching and caring for the safety of such Minor(s) and guarding such Minor(s) against hazards and risks at all times while attending the Event Activities.
If Holder does not wish to or is not authorized to grant such rights, releases and waivers on behalf of a Minor(s) as contained in this Section 3 of these Terms, Holder should immediately leave the Venue with the Minor(s).
Tickets shall not be used for advertising, promotion (including contests), or for other trade purposes. Each Ticket is only good for the particular Event indicated and no part of the purchase price will be refunded by the non-use of the Ticket. All Event Activities are subject to modification and cancellation. The Released Parties are not responsible for lost, stolen or duplicated Tickets.
ADVERTISING AND PROMOTION RELEASE. The Released Parties, their duly authorized agents and assigns, may use, on a non-exclusive basis, unless otherwise provided in a separate written agreement, Releasors’ name and likeness, including photographs, audio/visual content, images and sounds of Releasors, in any medium (including print, broadcasts by and through television, cable television, radio, pay-per-view, closed circuit television, satellite signal, digital signal, film productions, audiotape productions, transmissions over the Internet, public and private online services authorized by the applicable Released Parties, and sales and other commercial projects, and the like) for promoting, advertising, or marketing the Venue, the Event Activities, the Released Parties, or related advertising, promotion, telecast or programming, and Releasors do hereby relinquish to the Released Parties in perpetuity all rights thereto for such purpose.
BROADCAST AND OTHER RIGHTS. Releasors acknowledge that the Released Parties, as applicable, exclusively and in perpetuity own any and all rights to broadcast, transmit, film, tape, capture, overhear, photograph, collect or record by any means, process, medium or device (including to television, cable television, radio, pay-per-view, closed circuit television, satellite signal, digital signal, film productions, audiotape productions, transmissions over the Internet, public and private online services authorized by the applicable Released Parties, sales and other commercial projects, and the like), whether or not currently in existence, all images, sounds and data arising from or during the Event Activities and that the Released Parties, as applicable, are and shall be the owners of any and all intellectual property rights (including, but not limited to, patents, copyrights, trademarks, design rights, and other proprietary rights) worldwide in and to these works and in and to any other works, copyrightable or otherwise created from the images, sounds and data arising from, during or in connection with the Event Activities. In addition to the extent not already owned by the applicable Released Parties, Releasors hereby assign to the Released Parties exclusively and in perpetuity any and all rights set forth above. Releasors represent and warrant that as of the Releasors’ acceptance of these Terms, Releasors have not granted to any third party the rights described herein. Releasors agree to take all steps reasonably necessary, and all steps requested by the Released Parties, to protect, perfect or effectuate the Released Parties’ ownership or other interest in these rights. Releasors agree not to take any action, nor cause others to take any action, nor enter into any third party agreement which would contravene, diminish, encroach or infringe upon these rights of the Released Parties. Releasors shall not transmit or aid in transmitting any images, videos, audio, livestreams or other accounts or descriptions about the Event Activities in any media. Releasors consent to and waive compensation for use of their images or other personality rights in connection with the Event Activities.
3.2 Additional Releases, Waivers, and Other Terms. When purchasing a Ticket for a particular Event or otherwise using the App to register to attend or participate in a particular Event, you may also be required to agree to additional releases, waivers, or other terms for that Venue or Event, each of which are, when agreed to by you (through purchase of a Ticket that references those terms or otherwise indicating your acceptance to those terms via the App) hereby incorporated into these Terms.
4. 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 name, date of birth, address, email address, or other contact information, (or such other form of identification as we may require). 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 verification code that was sent to your mobile device. You are solely responsible for maintaining the confidentiality of your account, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us email@example.com.
5.1 General Terms. Certain features of the Service may require you to pay fees. These fees are solely in consideration of the purchase of Tickets and Ticket Hoss’s provision of the Service, including the ability to agree to Agreements via the App. Your attendance at the Events, Event Activities, or use of the Venues is not conditioned on your use of the Service or payment of fees to Ticket Hoss. If you wish to attend an Event or use the Venues without using the App, please contact the Operator directly for an alternative form of admission. Transactions for Events held in the United States are in U.S. dollars, and likewise, Events held In Canada are in CAD. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable.
5.2 Price. Ticket Hoss reserves the right to determine pricing for the Service. Ticket Hoss will make reasonable efforts to keep pricing information published on the website up to date. Ticket Hoss may change the fees for any feature of the Service, including changes to add additional fees or charges, if Ticket Hoss gives you advance notice of changes before they apply. Ticket Hoss, at its sole discretion, may make promotional offers with different features and different pricing to any of Ticket Hoss’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
5.3 Authorization. You authorize Ticket Hoss and its payment processors to charge all sums for the orders that you make through the Service as described in these Terms or otherwise published by Ticket Hoss, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Ticket Hoss or its payment processors 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.
6.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Ticket Hoss grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of the App on a mobile device that you own or control; and (b) access and use the Service.
6.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, resell, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) 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.
6.3 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 Ticket Hoss 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.
7. OWNERSHIP; PROPRIETARY RIGHTS
The Service is owned and operated by Ticket Hoss and its licensors and other third-party suppliers. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Ticket Hoss are protected by intellectual property and other laws. All Materials included in the Service are the property of Ticket Hoss or its third-party licensors. Except as expressly authorized by Ticket Hoss, you may not make use of the Materials. Ticket Hoss reserves all rights to the Materials not granted expressly in these Terms.
8. THIRD PARTY TERMS
8.1 Third Party Services and Linked Websites. Ticket Hoss may provide tools through the Service that enable you to export information, including User Content (defined below), to third party services, including through features that allow you to link your account on Ticket Hoss 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 Ticket Hoss may transfer that information to the applicable third party service. Third party services are not under Ticket Hoss’s control, and, to the fullest extent permitted by law, Ticket Hoss is 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 Ticket Hoss’s control, and Ticket Hoss is not responsible for their content.
8.2 Third Party Software. The Service may 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.
9. USER CONTENT
9.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
9.2 Limited License Grant to Ticket Hoss. By providing User Content to or via the Service, you grant Ticket Hoss an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.x
9.3 User Content Representations and Warranties. Ticket Hoss disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
9.4 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. Ticket Hoss 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 do waive, any legal or equitable right or remedy you have or may have against Ticket Hoss with respect to 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, Ticket Hoss does not permit copyright-infringing activities on the Service.
10.1 Text Messaging. Ticket Hoss and those acting on our behalf may send you text (SMS) messages at the phone number you provide us, including to verify your account upon registration. When you provide your phone number, you agree to receive messages from us. These messages may include operational messages about your use of the Service, account verification, and instructions. You may update the phone number associated with your account at any time through the App or by sending an email firstname.lastname@example.org. Operational text messages are essential to the Service. If you do not wish to receive operational text messages from us, do not use the Service. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
10.2 Push Notifications. When you install the App on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the App is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
10.3 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
11. PROHIBITED CONDUCT
11.1 BY USING THE SERVICE YOU AGREE NOT TO:
12. Digital Millennium Copyright Act
12.1 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:
Pit Pay Inc. dba Ticket Hoss
ATTN: Legal Department (Copyright Notification)
7168 Weddington Rd., Suite 148 Concord, North Carolina 28027
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
12.2 Repeat Infringers. Ticket Hoss will promptly terminate the accounts of users that are determined by Pit Pay to be repeat infringers.
13. MODIFICATION OF THESE TERMS
We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose except that if the dispute is in connection with a Ticket purchase or otherwise related to an Event for which you have purchased a Ticket through the App, then, unless the change was as a result of a change in applicable legal requirements, the version of the Terms that were in effect at the time you purchased the Ticket will apply to all disputes arising in connection with such Ticket or Event.
14. TERM, TERMINATION AND MODIFICATION OF THE SERVICE
14.1 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.
14.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Ticket Hoss 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. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
14.3 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 Ticket Hoss any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 3, 6.3, 7, 14.3, 15, 16, 17, 18, and 19 will survive.
14.4 Modification of the Service. Ticket Hoss 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. Ticket Hoss will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Ticket Hoss and its owners, officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Ticket Hoss Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including any Operator. 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 that matter), and in that case, you agree to cooperate with our defense of those claims.
16. DISCLAIMERS; NO WARRANTIES
16.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TICKET HOSS DISCLAIMS 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 COURSE OF DEALING, USAGE, OR TRADE. TICKET HOSS DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TICKET HOSS DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
16.2 TICKET HOSS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SAFETY, LEGALITY, OF ANY EVENT OR VENUE, OR THE TRUTH OR ACCURACY OF ANY INFORMATION PROVIDED BY AN OPERATOR, OR AN OPERATOR’S ABILITY TO HOST AN EVENT OR OPERATE A VENUE. TICKET HOSS HAS NO RESPONSIBLITIY TO YOU FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY OPERATOR OR THEIR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, SUBSIDIARIES AND AGENTS.
16.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR TICKET HOSS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TICKET HOSS ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
16.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Ticket Hoss does not disclaim any warranty or other right that Ticket Hoss is prohibited from disclaiming under applicable law.
17. LIMITATION OF LIABILITY
17.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TICKET HOSS 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, AND WHETHER OR NOT ANY TICKET HOSS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
17.2 YOU ACKNOWLEDGE AND AGREE THAT (A) ATTENDING AN EVENT IS INHERENTLY RISKY AND MAY INVOLVE DANGEROUS CONDITIONS THAT RESULT IN INJURY, SERIOUS BODILY HARM, AND EVEN DEATH AND (B) TICKET HOSS IS NOT RESPONSIBLE FOR ANY INJURIES OR FATALITIES THAT MAY OCCUR AT ANY VENUE DURING ANY EVENT OR EVENT ACTIVITIES.
17.3 EXCEPT AS PROVIDED IN SECTION 18.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TICKET HOSS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF 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 TICKET HOSS FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
17.4 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. 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.
18. DISPUTE RESOLUTION AND ARBITRATION
18.1 Generally. In the interest of resolving disputes between you and Ticket Hoss in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and Ticket Hoss agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal 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. This agreement to arbitrate disputes includes 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 TICKET HOSS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Despite the provisions of Section 18, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to Ticket Hoss Inc., Attention: Legal Department – Arbitration Opt-Out, 7168 Weddington Rd., Suite 148, Concord, North Carolina 28027 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Ticket Hoss receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.3. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
18.4 Arbitrator. Any arbitration between you and Ticket Hoss will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. 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 Ticket Hoss. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
18.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Ticket Hoss’s address for Notice is: Pit Pay dba Ticket Hoss Inc., 7168 Weddington Rd., Suite 148, Concord, North Carolina 28027. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Ticket Hoss may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Ticket Hoss must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Ticket Hoss in settlement of the dispute prior to the award, Ticket Hoss will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
18.6 Fees. If you commence arbitration in accordance with these Terms, Ticket Hoss will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Mecklenburg County, North Carolina, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) 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 that case, you agree to reimburse Ticket Hoss 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.
18.7 No Class Actions. YOU AND TICKET HOSS 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 Ticket Hoss 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.
18.8 Modifications to this Arbitration Provision. If Ticket Hoss makes any future change to this arbitration provision, other than a change to Ticket Hoss’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Ticket Hoss’s address for Notice of Arbitration, in which case your account with Ticket Hoss will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
18.9 Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if Ticket Hoss receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.3 will govern any action arising out of or related to these Terms.
19.2 Third Party Beneficiaries. You and Ticket Hoss acknowledge and agree that all Released Parties (excluding Ticket Hoss) are third party beneficiaries of this Agreement. In addition to Ticket Hoss’ rights therein, the provisions contained in Section 3 are made expressly for the benefit of the Released Parties and are enforceable by the Released Parties.
19.3 Governing Law. These Terms are governed by the laws of the State of North Carolina without regard to conflict of law principles. You and Ticket Hoss submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Mecklenburg County, North Carolina for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in North Carolina, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
19.5 Additional Terms. Your use of the Service is subject to 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 from any portion of the Service (together with all Agreements, the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
19.7 Contact Information. The Service is offered by Ticket Hoss Inc., located at 7168 Weddington Rd., Suite 148, Concord, North Carolina 28027. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org..
19.8 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.
19.9 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.
19.10 International Use. The Service is intended for visitors located within the United States or Canada. We make no representation that the Service is appropriate or available for use outside of the United States or Canada. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
20. NOTICE REGARDING APPLE
This Section 20 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Ticket Hoss 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.