Terms of Service
LAST UPDATED: APRIL 5, 2022
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY. BY MAKING A PURCHASE OF PRODUCT(S) WE SELL ON THE SITE, OR IN ANY OTHER PHYSICAL RETAIL LOCATION (“PRODUCTS”) OR ACCESSING OR USING THIS WEBSITE, WWW.NICOLPICKLEBALL.COM, OR ANY OTHER WEBSITES OF NICOL (“NICOL,” “US” OR “WE” OR “OUR”, ITS AFFILIATES OR AGENTS WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “SITE” ) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE SITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY US, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE SITE, YOU REPRESENT THAT (1)YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2)YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3)YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THIS SITE OR THE SERVICES.
FOR ANY PURCHASES MADE AT ANY NICOL PHYSICAL RETAIL LOCATION, YOU MAY REQUEST A COPY OF YOUR SIGNED AGREEMENT WITH NICOL BY CONTACTING SUPPORT@NICOLPICKBALLPICKLEBALL.COM.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE INITIAL TERM WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT NICOL’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THIS AGREEMENT. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”), such as the nicol Gift Card Terms and Conditions included below, and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. The Supplemental Terms shall be governed by this Agreement. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY. WE MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE TO YOU. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THIS SITE OR THE SERVICES.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the Agreement available at the Site. We will also update the “Last Updated” date at the top of the Agreement. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Site or Services and will be effective thirty (30) days after posting notice of such changes on the Site for existing users. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Site or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT AGREEMENT.
We grant you a limited license to access and use the Site for your personal use, and to copy, distribute and transmit the content of this Site only to the extent that such copying, distribution and transmission is automatically done through your browser software incidentally to using the Site for your personal use.
Further, (a)you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Site or Services, (b)you shall not frame or utilize framing techniques to enclose any of our trademarks, logos, or other intellectual property (including images, text, page layout or form); (c)you shall not use any metatags or other “hidden text” using our name or trademarks; (d)you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e)you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f)except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g)you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Site. Any future release, update or other addition to the Site shall be subject to this Agreement. We, our suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of the Site or Services terminates the licenses granted by us pursuant to this Agreement.
In order to access certain features of the Services, you may be required to link your account with a third party account (“SNS” and each such account, a “Third-Party Account”) by allowing us to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you have the right to grant us access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without requiring us to pay any fees or subjecting us to any usage limitations imposed by such third-party service providers. By granting us access to any Third-Party Accounts, we may access, make available and store (if applicable) any photographs, information, data, text, software, graphics, video, messages, tags and/or other materials accessible through the Site (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Site via your account. You may also share Content obtained or accessed through the Services with such Third-Party Account. You have the ability to disable the connection between your account and your Third-Party Accounts at any time by accessing the “Settings” section of the Site. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WE WILL HAVE NO LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO THEM BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. We make no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and we are not responsible for any SNS Content.
YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
You are solely responsible for protecting the security and confidentiality of your password and identification. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site's security.
At the time of your first order, we will request shipping and payment information. You agree that we may update your payment information with information your bank or credit card issuer may supply, or other information available to us.
ALL PURCHASES OF PRODUCTS (WHETHER THROUGH THE SITE OR ANY PHYSICAL RETAIL LOCATION) ARE FOR PERSONAL, NON-COMMERCIAL USE ONLY, AND YOU AGREE NOT TO RESELL PRODUCTS. THE SALE OR LINKING OF OUR PRODUCTS ON OR TO ANY THIRD PARTY E-COMMERCE SITE, MARKETPLACE OR MOBILE APPLICATION WITHOUT OUR SPECIFIC WRITTEN CONSENT IS EXPRESSLY PROHIBITED.
Certain Products available on our Site may be available exclusively online through the Site, and may be limited in quantity. Descriptions, images, references, features, content, specifications, products, prices, and availability of any Products are subject to change without notice, and our current prices can be found on the Site. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products on the Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Site. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product; to honor, cancel or impose conditions or limitations on the honoring of, any coupon, coupon code, promotional code, referral credit or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any Product. All descriptions of Products or Product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any Product made on this Site is void where prohibited.
Each part of any order that you submit to nicol constitutes an offer to purchase. If you do not receive a message from nicol confirming receipt of your order, please contact our Customer Service department at firstname.lastname@example.org before re-entering your order. nicol’s confirmation of receipt of your order does not constitute nicol’s acceptance of your order. nicol is only deemed to have accepted your order once the Product(s) you ordered have been shipped.
Although we strive to accept all valid orders, nicol reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.
If any Product is discontinued or otherwise becomes unavailable, nicol reserves the right to cancel your order and provide you a refund for the amount paid for the Product.
To protect the intellectual property rights of nicol, any resale of Products for personal and/or business profit is strictly prohibited. nicol reserves the right to decline any order that we deem to possess characteristics of reselling.
BILLING AND PAYMENTS
To make an order through the Services, you must provide valid payment information. By providing your payment information, you agree that nicol is authorized to immediately invoice your Account for all fees and charges due and payable to nicol hereunder and that no additional notice or consent is required. You agree to immediately notify nicol of any change in your billing address, debit card, credit card, or other relevant payment account information. In all countries we currently ship products to, we accept the following debit or credit cards: Visa, MasterCard, American Express and Discover. In the United States, we also accept PayPal. Additionally, we accept nicol gift cards in all countries we currently ship products to (“Gift Cards”). If you purchase or use any nicol gift cards, you agree to the terms of the nicol Gift Card Terms and Conditions, which are outlined below (the “Gift Card Terms”). If you do not agree to the nicol Gift Card Terms and Conditions, you may not use or purchase Gift Cards. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official nicol communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
You may be charged local tax, if applicable. If your payment method is declined, we will attempt to process your charge until the transaction is approved. If we are unable to complete the transaction, we may contact you directly to update your account information.
We use a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). You hereby consent to provide and authorize nicol and its third-party service provider to share any information and payment instructions you provide to the extent required to complete payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information. Upon initial registration of your credit card, you may see a pending charge as part of the authorization confirmation process. This is not a charge and is used to confirm account authenticity. The pending charge should automatically clear on its own. If you have any issues, please contact email@example.com. We are not responsible for any fees or charges that your bank or credit card issuer may apply.
The risk of loss and title for items purchased by you passes to you upon our delivery of the items to the carrier; provided, however, that if the carrier fails to deliver your purchased items within thirty (30) days of the specified delivery date, you may cancel and request a refund.
If you are not 100% satisfied with your purchase, you can receive a refund on your first Product purchase and get a full refund or exchange up to 30 days from the date of purchase. If you are a consumer in the United Kingdom, you have the right to cancel your purchase of any subscription without reason within 14 days of the initial purchase and request a refund of the relevant subscription fee.
To request a refund, please contact us at: firstname.lastname@example.org. Refunds will be issued by us in our sole discretion. Any refund will be issued to the same payment method used for the relevant purchase.
The Gift Card Terms describe the terms and conditions that apply to your purchase and use of Gift Cards. By purchasing, accepting and/or using your Gift Card, you agree to be bound by these Gift Card Terms. If you do not agree with the Gift Card Terms, please do not purchase, accept or use a Gift Card. These Gift Card Terms are subject to and governed by this Agreement, and considered “Supplemental Terms” as defined herein.
nicol Gift Cards are issued and sold by nicol Gift Cards can be purchased online at https://nicolpickleball.com for any value up to five hundred USD ($500), CAD (CA$500) or GBP (£500). To purchase a Gift Card, you must define an amount, recipient and recipient e-mail address, and you may select the date on which the Gift Card will be emailed to the specified recipient (this may be you). The recipient may be outside of the countries we ship to, but please note that shipping of nicol products is only supported within the United States, Canada and the United Kingdom at this time.
When purchasing a Gift Card, you must provide your billing information at check-out. Gift Card purchases are final and non-refundable.
Purchases made with your Gift Card will be deducted from your Gift Card Balance. You can keep track of and view your unused Gift Card Balance in your nicolpickleball.com account balance (“Account Balance”) and such Gift Card funds can be applied to a future purchase without entering any additional payment information; provided, however, if a purchase exceeds your Gift Card Balance, you must pay the remaining amount with any payment method accepted on our Site.
Gift Cards do not expire or decrease in value if you do not use them, and they are not subject to inactivity or maintenance fees.
Gift Cards may only be used to purchase eligible goods provided by nicol, and may not be used towards the purchase of another Gift Card. Credits issued for loyalty, rewards, goodwill or promotional or similar purposes (“Promotional Credit”) are not Gift Cards and a Gift Card may not be purchased with Promotional Credit. Gift Cards may not be reloaded, resold, or used for payment outside of the Site or the nicol physical retail stores; used for unauthorized advertising, marketing, sweepstakes or other promotional purposes; redeemed for more than face value; transferred for value; redeemed for cash (except to the extent required by law); or returned for a cash refund (except to the extent required by law). No portion of your Account Balance may be transferred to another nicolpickleball.com account.
We are not responsible for any stolen Gift Card Balance or use by someone other than yourself or the intended recipient. Title to and risk of loss for Gift Cards pass to the purchaser upon sale. If you suspect someone has copied or stolen your Gift Card Balance, contact nicol at email@example.com immediately. nicol reserves the right to refuse to accept Gift Cards that are suspected or believed to have been obtained fraudulently.
By using a Gift Card, you also agree not to use a Gift Card in any manner that is misleading, deceptive, unfair, or otherwise harmful to nicol or its customers. Subject to applicable law, we reserve the right, without notice to you, to void Gift Cards without a refund, suspend or terminate customer accounts or the ability to use our services, cancel or limit orders, and bill alternative forms of payment if we suspect that a Gift Card is obtained, used, or applied to a nicolpickleball.com account (or your Account Balance applied to a purchase) fraudulently, unlawfully, or otherwise in violation of this Agreement.
TO THE FULL EXTENT PERMISSIBLE BY LAW, NICOL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS OR YOUR ACCOUNT BALANCE, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
These Gift Card Terms shall be governed in all respects by the laws of the State of California, U.S.A., without regard to choice of law provisions. Any dispute related to Gift Cards shall be handled in accordance with the “Arbitration Agreement” section of this Agreement.
We reserve the right to change these Gift Card Terms without notice, from time to time at our sole discretion. All Gift Card Terms are applicable to the extent permitted by law. If any of these terms and conditions are deemed invalid, void, or for any reason unenforceable, that unenforceable term will be deemed severable and will not affect the validity and enforceability of any remaining terms and conditions. nicol may also issue Promotional Credit. Promotional Credit is not subject to these Gift Card Terms and may be subject to an expiration date and other conditions, as specified on the Promotional Credit or in related promotional materials.
nicol reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that nicol is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. nicol does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the product you are reviewing; (ii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iii) your review will comply with this Agreement. If nicol determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Review without notice. Further, nicol may remove any Reviews in the event it determines, in its sole discretion, that a Review: a. Is false, unlawful, misleading, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing (or advocates harassment of another person), threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; b. Is patently offensive to the online community, such as that which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; c. Would constitute, encourage, promote or provide instructions for conduct of an illegal activity, a criminal offense, give rise to civil liability, violate the rights of any party in any country of the world, or that would otherwise create liability or violate any local, national or international law; d. Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy or providing or creating computer viruses; e. May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; f. Constitutes mass mailings or “spamming”, “junk mail”, “chain letters” or “pyramid schemes”; g. Impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including nicol; h. Is private information of any third party, including, without limitation, addresses, phone numbers, email addresses, social security numbers and credit card numbers; i. Include or are intended to facilitate viruses, corrupted data or other harmful, disruptive or destructive files; j. Is unrelated to the topic of the Reviews or products in which such Review is posted; or k. (i) is otherwise objectionable, (ii) restricts or inhibits any other person from using or enjoying the Services, or (iii) may expose nicol or its users to any harm or liability of any type.
WE DO NOT PROMISE, COVENANT, REPRESENT, WARRANT OR GUARANTEE THAT YOU OR ANY OTHER USER OF THE SITE WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SITE, OR ANY PRODUCT OR SERVICE MADE AVAILABLE ON OR THROUGH THE SITE.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THE SITE AND THE PRODUCTS OFFERED ON THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND, UNLESS SPECIFICALLY SET FORTH OTHERWISE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS ON THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW LIMITATIONS OR EXCLUSIONS ON WARRANTIES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SITE OR SERVICES, INCLUDING IN CONNECTION WITH THE PRODUCTS, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
NOTICE REGARDING PROFESSIONAL ADVICE
THIS SITE DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THIS SITE OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE INCLUDES, WITHOUT LIMITATION, PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. ANY AND ALL SITE MATERIALS ARE FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY, AND ARE NOT CONSTRUED TO BE ADVICE OF ANY KIND. THE SITE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION BEFORE RELYING ON OR OTHERWISE DECIDING TO TAKE ANY ACTION ON THE BASIS OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SITE. NEVER DISREGARD PROFESSIONAL MEDICAL OR HEALTH RELATED ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THIS SITE.
LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SITE OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (5) ANY OTHER MATTER RELATED TO THE SITE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY US AS A RESULT OF YOUR USE OF THE SITE IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID THE COMPANY ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, COMPANY’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY US DOLLARS ($50).
The technology underlying the Site and the entire contents of the Site including, but not limited to, text, graphics, images, audio clips, digital downloads, data compilation or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of nicol and protected by copyright and other intellectual property or proprietary rights. The collective work includes works that are licensed to nicol © 2022. nicol All rights reserved.
All trademarks, service marks and trade names of nicol on the Site, including the NICOL mark, are trademarks or registered trademarks of nicol. or their respective owners.
To the fullest extent permitted under applicable law, you agree to indemnify, defend and hold harmless nicol, its officers, directors, employees, agents, licensors and suppliers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement, or any activity related to use of the Site (including negligent or wrongful conduct)by you or any other person accessing the Site using your Internet account, or your ability or inability to use the Site and Services, including any products purchased thereon.
PRIVACY AND INTERNATIONAL USERS
The Services are controlled and offered by nicol from its facilities in the United States. nicol makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
The following provision applies only if you are a consumer in the United Kingdom: A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
THIRD-PARTY LINKS AND SITES
This Site may link to other websites operated by third parties. We have no control over these linked sites, each of which have separate privacy and data collection practices independent of nicol’s. We are not responsible for and do not endorse or accept any responsibility for the availability, contents, products, services or use of any third party site, any website accessed from a third party site or any changes or updates to such sites. These linked sites are only for your convenience and therefore you access them at your own risk. You acknowledge that you bear all risks associated with access to and use of content provided on a third party site and agree that we are not responsible for any loss or damage you may incur from dealing with such a third party site. You should contact the site administrator for the applicable third party site if you have any concerns regarding such links or the content located on any such third party site.
You agree that submission of any ideas, suggestions, documents, and/or proposals to us through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Site and Services.
The communications between you and nicol may take place via electronic means, whether you visit the Services or send nicol e-mails, or whether nicol posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from nicol in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that nicol provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Your use of the Site shall be governed in all respects by the laws of the state of California, U.S.A., without regard to choice of law provisions. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not be applicable to you (but only to the extent that local law conflicts with this section).
This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. nicol may assign all or any part of the Agreement without restriction.
We shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages or delays of transportation or shipping facilities, fuel, energy, labor or materials.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held to be invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services 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. If you are a resident of Canada, you can contact your provincial consumer affairs office to lodge a complaint.
This Agreement is the entire and exclusive agreement between the parties, and it supersedes all previous communications, representations or agreements, either oral or written, between them with respect to this subject matter. No representations or statements of any kind made by any affiliate of nicol, which are not included in this Agreement, shall be binding on nicol or its affiliates.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to your access or use of the Site, to any Products sold or distributed through the Site, or to any aspect of your relationship with us, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes, claims or requests that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Incorporating Services, Ltd., 3500 S Dupont Hwy, Dover, Delaware 19901, with a copy to nicol (dba nicol), 3576 Eastham Drive, Culver City, CA 90232. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadrpickleball.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadrpickleball.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadrpickleball.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, we will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND nicol HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all disputes, claims or requests shall be resolved by arbitration under this Arbitration Agreement, except as specified in 1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the Federal or state courts of Los Angeles, California. All other disputes, claims, or requests for relief shall be arbitrated.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: nicol (dba nicol), 3576 Eastham Drive, Culver City, CA 90232 or at firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. Except as provided in 5 above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: nicol (dba nicol), 3576 Eastham Drive, Culver City, CA 90232.
- Alternatives to Arbitration. If you are a resident of a jurisdiction that prohibits arbitration agreements or class action waivers in consumer contracts and this Agreement is deemed to be a consumer contract, the portions of this Agreement related to arbitration will not apply to you. Instead, the exclusive jurisdiction and venue of any claim will be the state and federal courts located in the State of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. If you are a resident of a jurisdiction that prohibits the application of California law in a consumer contract, this Agreement will be governed by the laws of your jurisdiction of residence and the non-exclusive venue of any claim will be in the courts of your jurisdiction of residence.