BY CLICKING THE “AGREE” BUTTON, OR DOWNLOADING AND INSTALLING, OR USING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND YOU UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 21 YEARS OF AGE OR OLDER, OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION, YOU SHOULD DELETE IT FROM YOUR MOBILE DEVICE. IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION (SECTION 24) REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION WAIVER (SECTION 26). For users of Apple-manufactured devices, the additional terms in Section 29 shall apply.
Your use of the Software constitutes your acceptance of the terms of this Agreement, which may be amended from time to time by Company. In the event of a revision to this Agreement, when you open the Mobile App you will be prompted by a notice containing a link to the new version and you will be required to acknowledge and agree to the new version. The most recent version of this Agreement shall supersede any and all other versions of this Agreement.
3. Eligibility. No part of the Software is directed to persons under the age of 21. You must be at least 21 years of age to access and use the Software. Any use of the Software is void where prohibited. By accessing and using the Software, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
4. Geographic Restrictions. The Software and Services are provided for access and use only by persons located in the United States. Using the Software may be prohibited or restricted in certain countries. You acknowledge that you may not be able to access all or some of the Software features and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Software and Services from outside the United States, you are responsible for compliance with local laws.
5. Allowable Uses of the Software. Any use of the Software in any manner not allowed under this Agreement or, for users of Apple-manufactured devices (e.g., iPhone, iPad, etc.) the Apple Licensed Software End User License Agreement (see Section 30 below), including, without limitation, resale, transfer, modification, reverse engineering, or distribution of the Software is prohibited. This Agreement does not entitle you to receive and does not obligate Company to provide hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software.
6. Account; Security.
A. Users. You may use the softwareware if you have a Club account or even if you do not have an account. If you do not have an account, you will not be able to use certain of the Services or have access to all areas of the Software. You can become a Club member by applying at www.pechanga.com/join/apply. Club members will have their account profile linked to the Software at initial login.
B. Account Access. You are responsible for maintaining the confidentiality of the username and password you designate during the registration process (and as you update thereafter), and you are solely responsible for all activities that occur under your username and password. You agree to immediately notify us of any disclosure or unauthorized use of your username or password or any other breach of security and ensure that you log out from your account at the end of each session. Company is not responsible for any misuse of your account or information if you have (voluntarily or involuntarily) given someone access to it.
C. Social Networking Sites (“SNS”). The Services may allow users to connect with various SNSs. By connecting your SNS account, you represent that you are entitled to grant us access to your SNS account without breach by you of any SNS terms and conditions and without obligating us to pay any fees or making us subject to any usage limitations. By granting Company access to your SNS account, you understand that we may access, make available, and store any information, content, or other materials that you have provided to or stored in your SNS account (“SNS Content”) accessible through the Website and Services so that it is available on your Account. Unless otherwise specified in the Terms, all SNS Content will be deemed your User Content (as defined below) for all purposes of the Terms. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS, AND WE DISCLAIM ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY AN SNS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN THE SNS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Company is not responsible for any SNS Content.
A. Company may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (i) the Software will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates.
B. You agree to promptly download and install all Updates and you acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement upon installation.
9. Your Acceptable Use. Use of the Software and any of your information or content collected, transmitted or stored in connection with the Software is limited to the functionality of the Software. In no event may the Software be used in a manner that (a) harasses, abuses, threatens, defames or otherwise infringes or violates the rights of others; (b) is unlawful, fraudulent or deceptive; (c) uses technology or other means to access Company’s proprietary information that is not authorized by Company; (d) uses or launches any automated system to access Company’s website or computer systems; (e) attempts to introduce viruses, Trojans, worms, malware, or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment; (f) attempts to gain unauthorized access to Company’s computer network or user accounts; (g) encourages conduct that would constitute a criminal offense, or would give rise to civil liability; (h) “stalks” or otherwise harasses any person; (i) uses any robot, spider, website search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Software or its contents; (j) asks users or uses users to conceal the identity, source, or destination of any illegally gained money or products; (k) collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Software; (l) forges headers or otherwise manipulates identifiers in order to disguise the origin of any information transmitted to or through the Software (either directly or indirectly through use of third party software); (m) “frames” or “mirrors” any part of the Software, without the Company's prior written authorization; (n) uses meta tags or code or other devices containing any reference to Company or the Software (or any trademark, trade name, service mark, logo or slogan of Company) to direct any person to any other website for any purpose; or, (o) otherwise violates this Agreement. Company reserves the right, in its sole discretion, to terminate this Agreement, request that you remove the Software from your Mobile Device for any reason, including, but not limited to, Company’s reasonable conclusion that you have violated this Agreement. Company may terminate or suspend your account at any time without notice if Company believes that you have breached this Agreement, or for any other reason, with or without cause, in its sole discretion. Upon such termination or suspension, you will not be entitled to any refund of unused fees for in app purchases. Company is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account. After your account is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
10. No Commercial Use by Users. The Software is for personal use only. Users may not use the Software or any content contained in the Software (including, but not limited to, content of other users, designs, text, graphics, images, video, information, logos, software, audio files and computer code) in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services not offered by us or (ii) soliciting others to attend parties or other social functions, or networking, for commercial purposes. Organizations, companies, and/or businesses may not use the Software for any purpose. Company may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Software, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Software.
11. Intellectual Property; Reservation of Rights. You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, including all copyrights, trademarks, other intellectual property rights and all other rights therein or relating thereto, except as expressly granted to you in this Agreement. All rights not specifically granted herein are reserved by us.
12. Limitation of Liability. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, (A) IN NO EVENT SHALL COMPANY BE LIABLE TO YOU WITH RESPECT TO (1) USE OF THE SOFTWARE, CONTENT OR SERVICES OR (2) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR US$100.00, AND (B) IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY WEBSITE THAT THE SOFTWARE MAY DIRECT YOU TO, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OR CORRUPTION OF DATA, BREACH OF PRIVACY OR SECURITY, TRANSMISSION OF PERSONAL DATA, FAILURE OR MALFUNCTION OF YOUR MOBILE DEVICE, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OR PERSONS YOU MEET THROUGH THE SOFTWARE.
13. Warranty Disclaimer.
A. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT MAKE AND COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, UPGRADES, OR UPDATES (AND ANY COPIES OF THE SAME), SUPPORT, AND SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES OR MALWARE, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
B. From time to time, Company may make third party opinions, advice, statements, offers, or other third party information or content available through the Software. All third party content is the responsibility of the respective authors thereof and should not necessarily be relied upon. Such third party authors are solely responsible for such content. COMPANY DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD PARTY CONTENT PROVIDED THROUGH THE SERVICE, OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY THAT APPEARS IN THE SERVICE. UNDER NO CIRCUMSTANCES WILL THE COMPANY OR ITS AFFILIATES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED IN THE SERVICE, OR TRANSMITTED TO OR BY ANY USERS. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, COMPANY IS NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE COMPANY FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE LIMITATIONS OR EXCLUSIONS ABOVE MAY NOT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
14. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
15. Indemnification. You agree to defend, indemnify, and hold harmless Company and its subsidiaries, divisions, instrumentalities, employees, contractors, officers, directors and successors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney’s fees and costs) that arise from your use or misuse of the Software, violation of this Agreement or violation of any rights (including, but not limited to intellectual property rights, right of privacy, right of publicity, etc.) of a third party. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate at your own expense in asserting any available defenses.
16. Intellectual Property Rights. You and Company acknowledge that, in the event of any third party claim that the Software or your use of the Software infringes any third party’s intellectual property rights, Company, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Should the Software be found to infringe any intellectual property rights of a third party, your sole remedy shall be either to cease using the Software or to use a non¬infringing version of the Software should Company choose to provide you with such a non-infringing version.
17. Product Claims. You acknowledge that Company, not Apple, Inc. or Google, is responsible for addressing any claims of the end-user or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and, (iii) claims arising under consumer protection or similar legislation.
18. Contact Information. Should you wish to contact Company with any questions, complaints or claims with respect to the Software, email Company at firstname.lastname@example.org.
19. Proprietary Nature of Software and Trademarks. Company owns or is licensed to use the Software and any and all trademarks, service marks and content included in the Software. The Software may incorporate trademarks, service marks or other content in connection with the services it provides and such trademarks, service marks or other content remains at all times the property of its respective owners. You have no right or license with respect to any trademarks, service marks and other content owned by Company or any third party that is visible on or provided to you through the Software.
20. Third Party Terms of Agreement. You agree to comply with all applicable third party terms of agreement when using the Software.
21. Governing Law; Venue; Jurisdiction. In order to assure consistency in the interpretation of this agreement, this Agreement is governed exclusively by the laws of the State of California, without giving effect to its conflict of law rules. This Agreement is not governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties further agree that the place of contract and performance of this Agreement is on the Pechanga Indian Reservation, Temecula, California. You consent to the exclusive venue and personal and subject matter jurisdiction in the state courts of Riverside County, California and the US District Court for the Central District of California.
22. Waiver/Severability. The failure of Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement shall be construed as if such provision were not contained in this Agreement.
23. Assignment. Except to the extent such rights cannot be restricted by applicable law, you shall not assign, sublicense, convey or transfer (collectively, “Assign”) this Agreement (whether by contract, merger or operation of law) without the prior written consent of Company, and any such attempt by you to Assign any rights, duties, or obligations hereunder shall have no power or effect, and is subject to Company’s right to immediately terminate this Agreement, the license granted hereunder, and your access to your account. Company may freely Assign this Agreement and any of your data or information you submit to Company or which Company collects from you or your Mobile Device.
24. Mandatory Arbitration.
A. The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Software shall be by binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration before a single arbitrator through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties, or, if no agreement is reached within ten (10) days of a request for agreement, then according to the rules (“Rules”) of the American Arbitration Association. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Notwithstanding the foregoing, either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Software, disclosure of Company’s confidential information or trade secrets, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in the dispute resolution process described above. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. If you or Company pursue arbitration, the arbitration action must be initiated within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the relevant claim.
B. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
C. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
25. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury for any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
26. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Company will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under this Agreement or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
27. Entire Agreement; Modifications. This Agreement comprises the entire agreement between you and Company, and supersedes any other agreement or discussion, oral or written, with respect to the subject matter of this Agreement, and may not be changed except by a written agreement signed in hardcopy form by both parties. There shall be no application of any rule of construction of this Agreement against the drafter as you have had an opportunity to have this Agreement reviewed by your counsel. You agree that your online account is non-transferable and all of your rights to your profile or contents within your account terminate upon your death.
28. Notice. The Company may provide you with notices, including those regarding changes to this Agreement, using any reasonable means now known or hereafter developed, including, but not limited to, by email, regular mail, SMS, MMS, text message, messages to you in your account profile, or postings in the Software. Such notices may not be received if you violate this Agreement by accessing the Software in an unauthorized manner. You agree that you are deemed to have received any and all notices that would have been delivered had you accessed the Software in an authorized manner. You may contact Company in writing at the contact information set out below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
29. Acknowledgement and Incorporation of Apple’s Terms.
A. Acknowledgement. Company and you, the end-user of the Software, acknowledge that the Agreement is entered into by and between Company and you, and is not with Apple, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this Agreement and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this Agreement. Company is solely responsible for the Software and any content contained therein. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Software. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). 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 “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
B. Incorporation of Apple. Inc. Licensed Software End User License Agreement. For users of Apple-manufactured devices, the following terms of this Section 29 shall apply. This Agreement incorporates by reference the Licensed Software End User License Agreement (the “LSEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the “Software” is considered the “Licensed Software” as defined in the LSEULA and “Company” is considered the “Software Provider” as defined in the LSEULA. If any terms of this Agreement conflict with the terms of the LSEULA, the terms of this Agreement shall control.
Updated June 11, 2019