1. GENERAL
These General Terms and Conditions (“Terms”) are entered into by and between you and Ball Drop, LLC (“Ball Drop,” “we,” “us,” or “our”). The Terms govern the relationship between Ball Drop and you, our site visitor (“you” or “your”), with respect to your use of the Internet site located at www.BallDrop.com (the “Site”). By visiting, using the Site, or for accessing the Site, including without limitation to (i) accessing, using and/or downloading Information, (ii) sending messages, information, data, text, software or images, or other Information to the Site, or (iii) otherwise using, accessing or purchasing tickets on the Site (collectively, the “Services”), you agree to accept and abide by these Terms regardless of how you access or use the Site and/or the Services, whether via personal computers, mobile devices or otherwise. In consideration of your use of and access to the Site, and/or the Services (and the promises and obligations herein, and intending to be legally bound), you and Ball Drop hereby agree as follows: Your access to and use of the Site and/or the Services is subject to these Terms, as well as any modifications issued by Ball Drop to these Terms, and all applicable laws and regulations. BY USING THE SITE AND/OR THE SERVICES, YOU AGREE TO AND WILL BE DEEMED TO BE BOUND BY THESE TERMS. If you do not want to be bound by these Terms, do not use the Site and/or the Services. Among other things, Ball Drop provides information concerning various products and services and the opportunity to obtain additional information concerning those products and services or to purchase them. The information available on or through use of the Site or the Services, including but not limited to data, text, articles, content, software, images, graphics, photographs, audio and video clips, links and references and other materials (collectively, the “Information”) is provided for informational purposes only. Reliance on any Information is solely at your own risk.
2. CHANGES IN TERMS
Ball Drop shall have the right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new terms and conditions with respect to access to or use of the Site and/or the Services. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to, posting the revised or additional terms and conditions on the Site. You are responsible for reviewing the Terms periodically for any modification to these Terms that may affect your rights or obligations hereunder. You agree that you shall be deemed to be apprised of and bound by any modification by Ball Drop to these Terms. ANY ACCESS OR USE OF THE SITE AND/OR THE SERVICES BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to these Terms by any party other than by Ball Drop shall be valid or enforceable against Ball Drop unless expressly agreed to by Ball Drop in a writing signed by a duly authorized officer of Ball Drop.
3. TERMINATION
These Terms are effective until terminated by Ball Drop. Ball Drop may terminate these Terms without notice and at any time. In the event of termination, you are no longer authorized to access the Site and/or the Services and the restrictions imposed on you with respect to the Content, the Information, the disclaimers, indemnities, limitations of liabilities, and the Binding Arbitration Clause (Section 16) set forth in these Terms shall survive termination. Ball Drop shall also have the right without notice and at any time to terminate the Site and/or the Services or any portion thereof, or any products or services offered through Ball Drop, the Site and/or the Services, or to terminate any individual’s right to access or use the Site and/or the Services or any portion thereof.
4. ABILITY TO CONTRACT
You affirm that you are at least eighteen (18) years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
5. COMPLIANCE WITH ALL LAWS
You agree to comply with all applicable international laws, statutes, ordinances and regulations regarding your use of the Site and/or the Services.
6. CONTENT
The text, images, photographs, graphics, logos, illustrations, descriptions, data, and other material provided on the Site and/or the Services, as well as the selection, assembly and arrangement thereof, are referred to collectively as the “Content.” The Content may contain errors, omissions, or typographical errors or may be out of date. Ball Drop may change, delete, or update any Content at any time and without prior notice. The Content is provided for informational purposes only and is not binding on Ball Drop in any way except to the extent it is specifically indicated to be so. Unless otherwise noted, all Content is protected by copyright, trademark, common law and other proprietary rights that are owned by Ball Drop or by third parties that have licensed their use to Ball Drop. You may view and use the Content only for your personal information and for no other purpose. You must retain all trademark, copyright and other proprietary notices on downloaded or printed Information, and any such downloads or copies are subject to the Terms and shall remain the property of Ball Drop and/or its licensors and/or suppliers. Except as provided in the foregoing, Ball Drop does not grant to you or any person any right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any of the Content on or transmitted through the Site and/or the Services, including without limitation by transferring, downloading or otherwise copying any Content onto any disk drive or other storage medium. Any use of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in writing signed by Ball Drop, is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Site and/or any Services or Information. Nothing contained on the Site and/or the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Ball Drop and/or its licensors’, suppliers’, resellers’, or third party owners of trademarks or copyrights without the express written permission of Ball Drop, our licensors or suppliers, resellers or the third party owner of any such trademark and/or copyright. Use of Content is strictly prohibited unless authorized in writing by Ball Drop and requests for permission should be directed to legal@balldrop.com. The Site and the Information is the property of Ball Drop and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. All other company and product names and logos are trademarks or registered trademarks of their respective owners.
7. THIRD PARTY LINKS
The Site may contain links to other websites for your convenience. Ball Drop has not fully reviewed the websites that are linked to the Site and does not control such sites or their content. Your use of linked websites is subject to the privacy practices and terms of use established by the specific linked site, and Ball Drop disclaims all liability associated therewith. The presence of such third party links does not indicate any approval or endorsement by Ball Drop of any linked website or any material contained within the third party linked website, and we disclaim any such approval or endorsement.
8. CODE OF CONDUCT
You agree not to:
8.1 - Engage in spamming or phishing attacks;
8.2 - Transmit (a) any content or information that is unlawful, fraudulent, deceptive, threatening, abusive, vulgar, derogatory, sexist, racist, hateful, harassing, libelous, defamatory, obscene, indecent, pornographic, sexually explicit, blasphemous, harmful, invasive of the privacy rights of others, or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication;
8.3 - Restrict or inhibit any other visitor from using the Site and/or the Services, including, without limitation, by means of “hacking” or defacing any portion of the Site and/or the Services;
8.4 - Express or imply that any statements you make are endorsed by us, without our prior written consent;
8.5 - Submit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs, or other items of a destructive nature;
8.6 - Manipulate identifiers, including by forging headers, in order to disguise the origin of any posting that you submit;
8.7 - Link to any portion of the Site other than the URL assigned to the home page of the Site;
8.8 - “Frame” or “mirror” any part of the Site;
8.9 - Modify, adapt, sub-license, translate, sell, reverse engineer, decompile, or disassemble any portion of the Site, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Content;
8.10 - Remove any copyright, trademark, or other proprietary rights notices contained on the Site;
8.11 - Use any computer program, bot, robot, spider, offline reader, site search/retrieval application, or other manual or automatic device, tool, or process to retrieve, index, data mine, or in any way reproduce or circumvent the security structure, navigational structure, or presentation of the Content or the Site, including with respect to any CAPTCHA displayed on the Site. Operators of public search engines may 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. We may revoke this exception at any time and require removal of archived materials gathered in the past;
8.12 - Use any automated software or computer system to search for, reserve, buy, or otherwise obtain tickets, discount codes, promotional codes, vouchers, credits, gift cards, or any other items available on the Site, including sending information from your computer to another computer where such software or system is active;
8.13 - Take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
8.14 - Access, reload, or refresh transactional event or ticketing pages, or make any other request to transactional servers, more than once during any three-second interval;
8.15 - Request more than 1,000 pages of the Site in any 24-hour period, whether alone or with a group of individuals;
8.16 - Make more than 800 reserve requests on the Site in any 24-hour period, whether alone or with a group of individuals;
8.17 - Reproduce, modify, display, publicly perform, distribute, or create derivative works of the Site or the Content;
8.18 - Reproduce or scan tickets in a format or medium different from that provided by the Site;
8.19 - Decode, decrypt, modify, or reverse engineer any tickets or underlying algorithms or barcodes used on or in production of tickets or the Site;
8.20 - Use the Site or the Content in an attempt to, or in conjunction with, any device, program, or service designed to circumvent any technological measure that effectively controls access to, or the rights in, the Site and/or Content in any way including, without limitation, by manual or automatic device or process, for any purpose;
8.21 - Use ticket bot technology to search for, reserve, or purchase tickets through the Site; for the avoidance of doubt, this specifically prohibits you from using automated ticket purchasing software on the Site, and prohibits you from circumventing any security measure, access control system, or other technological control or measure on the Site that is used to enforce posted event ticket purchasing limits or to maintain the integrity of posted online ticket purchasing order rules; and/or
8.22 - Harvest or collect information about the Site’s visitors or members without their express consent.
9. COPYRIGHT INFRINGEMENT CLAIMS
Pursuant to the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”), Ball Drop has designated to the U.S. Copyright Office an agent to receive notifications of claimed copyright infringement relating to the Site and/or the Services (the “Designated Agent”). All such notifications relating to the Site, and/or the Services must be submitted in a manner consistent with the DMCA to the following Designated Agent in writing as follows:
(1) Your physical or electronic signature;
(2) Identification of the copyrighted work or works claimed to have been infringed;
(3) Identification of the material that is claimed to be infringing that copyrighted work, and URLs or similar information sufficient to permit us to locate that material on our Site and/or the Services;
(4) Information to permit Ball Drop’s agent to contact you: your address, telephone number and email address;
(5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner, or are authorized to act on behalf of the owner of the copyright that is allegedly infringed.
Agent Designated to Receive Notification of Claimed Infringement:
DMCA Designated Agent
Ball Drop, LLC
copyright@balldrop.com
10. PURCHASING TICKETS / REFUND POLICY
10.1 - You may purchase tickets online, over the phone, or can pick them up at will call. If you choose the will call option, tickets will be sent to you by email in the form of a confirmation page or email and will NOT be available for pick up at the event venue.
10.2 - You will pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred, including any applicable taxes. You may only use credit or debit cards, gift cards or vouchers that belong to you or to people who expressly authorize you to use such payment methods. You may not attempt to conceal your identity by using multiple Internet Protocol addresses or email addresses to conduct transactions on the Site. You will not hold us liable if you do not comply with laws related to your transactions. We may provide law enforcement with information you provide to us related to your transactions to assist in any investigation or prosecution of you. If we are unable to verify or authenticate any information or tickets you provide during any registration, ordering, purchase, ticket posting, sale, authentication, delivery, payment or remittance process, or any other process, or if we are no longer able to verify or authorize your credit card or bank account information, your tickets may be canceled. We may refuse to honor all pending and future ticket purchases made with those credit card or bank accounts and/or via any online accounts associated with those credit card or bank accounts. We may also prohibit you from using the Site.
10.3 - All ticket prices for our events are in United States Dollars, are non-refundable, and are non-transferable.
10.4 - If your event is canceled, in most cases you won't need to do a thing. We will inform you of the cancellation and refund the amount you paid for your tickets using the same payment method you used for purchasing your tickets but we will not be responsible for any other expenses in connection with attending the event, including your travel expenses.
10.5 - We accept several methods of payment to purchase tickets to our events. We accept American Express, Visa, MasterCard, and Discover for our events. WARNING: There are unscrupulous ticket sellers who claim to be us and we cannot refund your money for purchasing tickets from unauthorized ticket sellers. Be sure that before you purchase tickets to our events that you are buying them from us or one of our authorized resellers. If you are unsure whether the ticket seller is authorized, please email us at legal@balldrop.com to confirm that the ticket seller is authorized. You hereby waive any and all claims and potential claims against Ball Drop and against any companies affiliated with Ball Drop relating to unauthorized ticket sales.
10.6 - If you do not receive a confirmation number (in the form of a confirmation page or email) after submitting payment information, or if you experience an error message or service interruption after submitting payment information, it is your responsibility to confirm with us via e-mail to legal@balldrop.com or call us at 212-201-0735 to inquire whether or not your order has been placed. Only you may be aware of any problems that may occur during the purchase process. We will not be responsible for losses (monetary or otherwise) if you assume that an order was not placed because you failed to receive confirmation.
10.7 - Tickets purchased on our Site are typically subject to a non-refundable per ticket service fee and a non-refundable per order processing fee. In many cases, delivery prices will also be owed. For resale tickets, the buyer will pay fees that may be reflected during the purchase process or that may be included and deducted from the amount displayed as the resale price of the ticket.
When purchasing tickets on our Site, you are limited to a specified number of tickets for each event (also known as a “ticket ceiling”). This ticket ceiling is posted during the purchase process and is verified with every transaction. This policy is in effect to discourage unfair ticket buying practices. We reserve the right to cancel any or all orders and tickets without notice to you if you exceed the posted limits. This includes orders associated with the same name, e-mail address, billing address, credit card number or other information.
11. DISCLAIMERS
11.1 - TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW: (A) THE SITE (INCLUDING ALL INFORMATION) AND THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; AND (B) BALL DROP AND ITS AFFILIATES, AGENTS, SERVICE PROVIDERS, EMPLOYEES, OFFICERS, DIRECTORS, CONSULTANTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “BALL DROP’S REPRESENTATIVES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE INFORMATION AND THE SITE IS CURRENT AND/OR UP-TO-DATE. BALL DROP AND BALL DROP’S REPRESENTATIVES DO NOT WARRANT THAT THE INFORMATION, THE SITE, OR THE SERVICES, NOR YOUR USE OF THE FOREGOING, WILL BE COMPLETE, ACCURATE, CURRENT, RELIABLE, UNINTERRUPTED, ERROR-FREE OR SECURE, NOR THAT DEFECTS WILL BE CORRECTED, NOR THAT THE SITE, THE SERVICES, OR THE SERVER(S) ON WHICH THE SITE, AND/OR THE SERVICES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND/OR SERVICES AND/OR INFORMATION AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF BALL DROP OR ANY OF BALL DROP’S REPRESENTATIVES, WHETHER MADE ON OR IN CONNECTION WITH THE SITE OR THE SERVICES OR INFORMATION SHALL CREATE ANY WARRANTY.
11.2 - Some states and provinces do not allow the disclaimer of implied warranties of merchantability and fitness for a particular purpose, so the above disclaimers or exclusions may not apply to you. In the event that applicable law imposes implied warranties on the Site, the Services or Information notwithstanding the foregoing, such implied warranties shall not have a duration greater than one year from the relevant purchase or access date; shall terminate automatically at the end of such period; and shall be disclaimed and excluded to the fullest extent permitted by law. You may also have other rights under applicable law which vary from state to state.
11.3 - The Site and the Services are controlled and operated from its facilities in the United States. Ball Drop makes no representations that the Site or the Services are appropriate or available for use in other locations. Those who access or use the Site or the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
11.4 - THROUGH YOUR USE OF THE SITE, THE SERVICES AND/OR INFORMATION, YOU MAY HAVE THE OPPORTUNITY TO ENGAGE IN COMMERCIAL TRANSACTIONS WITH THIRD PARTIES. ALL SUCH TRANSACTIONS ARE AT YOUR OWN RISK. BALL DROP AND BALL DROP’S REPRESENTATIVES ARE NOT PARTIES TO ANY SUCH TRANSACTIONS AND DISCLAIM ANY AND ALL LIABILITY REGARDING ALL SUCH TRANSACTIONS.
12. LIMITATION OF LIABILITY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER BALL DROP NOR ANY OF BALL DROP’S REPRESENTATIVES, NOR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, THE INFORMATION, SERVICES AND/OR ANY LINKED SITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THE SITE, THE INFORMATION, SERVICES, OR ANY LINKED SITE IS TO STOP USING THE SITE, THE INFORMATION, SERVICE, OR LINKED SITE, AS APPLICABLE. BALL DROP’S SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, INFORMATION AND/OR SERVICES, SHALL BE THE TOTAL AMOUNT PAID BY YOU FOR USE OF THE SITE, THE INFORMATION AND/OR SERVICES, IF APPLICABLE. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
13. INDEMNIFICATION
You agree to fully indemnify, defend and hold Ball Drop, any of Ball Drop’s Representatives, and their directors, officers, employees, consultants and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from your breach of these Terms and/or your activities in connection with the Site.
14. FORCE MAJEURE
None of Ball Drop’s or Ball Drop’s Representatives are or will be liable for any losses caused directly or indirectly as a result of causes or events beyond the control of Ball Drop, including natural disasters, acts of God, pandemics, war, terrorism actions, DNSSEC attacks, or decrees of governmental bodies, exchange of market rulings, failure of the Internet, communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of the obligations of Ball Drop and Ball Drop’s Representatives with respect to the effected elements under these Terms will be suspended for the duration of such Force Majeure Event.
15. COVID-19 WARNING
An inherent risk of exposure to COVID-19 exists in any place where people gather. COVID-19 is an extremely contagious disease that can lead to severe illness and death. You assume all risks, hazards, and dangers arising from or relating in any way to the risk of contracting a communicable disease or illness—including, without limitation, exposure to COVID-19 or any other bacteria, virus, or other pathogen capable of causing a communicable disease or illness, whether that exposure occurs before, during, or after the event, and regardless of how caused or contracted—and you hereby waive any and all claims and potential claims against Ball Drop and against any companies affiliated with Ball Drop relating to such risks, hazards, and dangers.
Ball Drop has no control over the venues’ Covid policies as such policies are set by each of its respective venue and are governed by state and local laws. You hereby waive any and all claims and potential claims against Ball Drop and against any companies affiliated with Ball Drop relating to whether an event is canceled due to COVID-19 restrictions or your entry into an event is disallowed.
16. DISPUTE RESOLUTION
16.1 - Informal Dispute Resolution. If you have any issues or problems concerning the Site and/or the Services, we encourage you to notify us immediately at legal@balldrop.com so that we can attempt to resolve your issue. Most issues or problems can be resolved quickly and amicably. However, in the event that that you or Ball Drop or Ball Drop Representatives are unable to come to an amicable resolution within fifteen (15) calendar days of your submission, you or Ball Drop or Ball Drop’s Representatives may bring a formal proceeding.
16.2 - Formal Dispute Resolution: Binding Arbitration. You agree that any and all disputes will be submitted to and finally determined by arbitration as set forth in Sections 16.3 through 16.8 below. In such case, you would incur additional expense in connection with such arbitration. The decision of the arbitrator will be final and binding and neither Ball Drop and its Representatives nor you will have the right to appeal such decision, whether in a court or in another arbitration proceeding. You understand that, by agreeing to arbitrate disputes as provided in these Terms, you, Ball Drop, and Ball Drop’s Representatives are waiving any and all statutory and other rights that we may have to a trial by jury in connection with any such dispute, claim or controversy. You may decline this agreement to arbitrate by e-mailing us at optout@balldrop.com within thirty (30) calendar days of first accepting these Terms. Notwithstanding the provisions of this section and Sections 16.3-16.8; 16.10-16.11 and subject to Section 18, each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of the party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you, Ball Drop, and Ball Drop’s Representatives are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless you, Ball Drop, and/or Ball Drop’s Representatives agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
16.3 - Arbitration Procedures. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the American Arbitration Association (“AAA”) Rules. The AAA provides a form Demand for Arbitration at https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_3.pdf.
16.4 - A single arbitrator will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) calendar days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitration will be administered by AAA in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/sites/default/files/Consumer-Related%20Disputes%20Supplementary%20Procedures%20Sep%2015%2C%202005.pdf or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitration will be conducted by one impartial arbitrator (who may be a former judge, practicing attorney or person who is not an attorney), selected by mutual agreement or, if you and Ball Drop cannot agree, the arbitrator will be selected in accordance with the AAA Rules.
16.5 - This arbitration agreement is intended to be broadly interpreted, and will survive termination of these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
16.6 - Arbitration Process and Applicable Law. Unless you and Ball Drop otherwise agree, the arbitration will be conducted in New York, New York by one arbitrator. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and Ball Drop submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will not award punitive damages to either party and you and Ball Drop will each be deemed to have waived any right to such damages. The arbitrator will, in rending his or her decision, apply the substantive law of the State of New York (excluding its choice of law rules that would require the application of the laws of another jurisdiction). The award of the arbitrator will be rendered within the time frame specified in the AAA Rules. It will include a written explanation of his or her decision and specify the basis for any damages, which may include the costs and expenses of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above (Section 12) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The written decision of the arbitrator will be final, binding and non-appealable and may be enforced in any court of competent jurisdiction.
16.7 - Arbitration Fees. Except for the limitations on fees as set forth in Section 16.6 above, your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. If your claim for damages is less than $75,000, however, Ball Drop will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
16.8 - Confidentiality. The arbitration proceeding will be confidential. The existence of any matter submitted to arbitration, and the award, will be kept in confidence by you, Ball Drop, and the arbitrator, except as required in connection with the enforcement of such award or as otherwise required by applicable law.
16.9 - Exceptions to Agreement to Arbitrate. Either you or Ball Drop may assert claims, if they qualify, in small claims court in New York or any United States county where you live or work. Either party may bring a lawsuit in any court solely for injunctive relief to stop unauthorized use or abuse of the Site and/or the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
16.10 - No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
16.11 - Venue for Other Types of Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Ball Drop agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of New York County. Both you and Ball Drop consent to venue and personal jurisdiction there.
17. ELECTRONIC DOCUMENTS
We may, in our sole discretion, seek your consent to these Terms and certain other agreements on the Site and/or the Services by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance to these Terms, affirmatively “click” on boxes containing the words, “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to these Terms or accessing the Site and/or the Services or using any of the Information or Content after you have had an opportunity to review these Terms, you acknowledge and agree: (i) that you intend to form a legally binding contract between you and Ball Drop; (ii) that you have read and agree to the terms and conditions of these Terms; (iii) that you agree and intend that these Terms to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by electronically agreeing to these Terms, you acknowledge that you have received a copy of these Terms by your viewing a web page containing a hyperlink to the web page where these Terms are displayed or otherwise; and (v) that if you are executing these Terms on behalf of others, you hereby certify that you are an authorized representative authorized by law.
18. MISCELLANEOUS
These Terms are governed and construed in accordance with the laws of the State of New York, without giving effect to the choice-of-law rules of that State. In accordance with Sections 16.9 and 16.11, you agree to submit to the exclusive jurisdiction of the federal courts of New York for resolution of disputes relating to or arising out of these Terms. In the absence of federal jurisdiction, you agree to submit to the exclusive jurisdiction of the state court located in New York County, New York. You agree to waive any jurisdictional, venue or inconvenient forum objections to such courts. All disputes shall be resolved in the English language. If any provision of these Terms are found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These are the entire Terms between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms or any right, obligation or remedy hereunder are not assignable, transferable, delegatable or sublicensable by you except with Ball Drop’s written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Ball Drop may assign, transfer or delegate these Terms or any right or obligation or remedy hereunder in its sole discretion. No waiver of Ball Drop of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in these Terms are inserted only as a matter of convenience and in no way defines or explains any section or provision hereof, and the singular shall include the plural and the plural the singular. You hereby acknowledge that you have carefully read all of the terms and conditions of Ball Drop Privacy Policy, which can be accessed by linking to https://www.balldrop.com/web/terms-and-conditions and agree to all such terms and conditions.
Should you have any questions, comments or complaints regarding these Terms, the Site or the Services, please contact us at:
Ball Drop, LLC
Tel: 212-201-0735
legal@balldrop.com
