1. Introduction
These Terms of Use (“Agreement” or “Terms”) are an agreement between you and Pinnacle Peak Country Club, Inc. (“Pinnacle Peak”, “us”, “our”, or “we”). These Terms govern the use of our website (“Website”), mobile application (“App”), and our products, services, and all capabilities included within, and/or made available through the Website or the App. Our Website, the App, and such products, services, and all capabilities therein are collectively referred to as the “Services.” These Terms apply to you, whether you are using or accessing the Services for yourself, or on behalf of a minor or person to whom you are a caregiver, and set forth the legally binding terms for your use of the Services.
Our Services may interact with other products and services owned and operated by Pinnacle Peak or other services operated by unaffiliated third parties.
When using certain Services, you may be presented with Service-specific terms (“Service Specific Terms”). To the extent these Terms conflict with the Service Specific Terms, the Service Specific Terms shall control.
2. Acceptance of Terms of Service
These Terms apply to the Services, software, and applications made available through the Website and the App. This Agreement governs the acceptable use of the Services and content accessed through the Services, and your rights, obligations, and restrictions regarding your use of the Services. By downloading, registering for access, accessing, or using the Services, you agree that you have read, understood, and agreed to be bound by these Terms and our Privacy Policy (which can be found [here]). If you do not agree, do not use the Services.
3. Updates to Terms
Pinnacle Peak reserves the right to update or change these Terms at any time by posting the most current version of the Terms on the Website and App with a new Effective Date shown. You are responsible for checking these Terms and the Privacy Policy periodically for changes. All such changes in the Terms shall be effective from the Effective Date. Your continued use of the Website or App after we post any changes to the Terms signifies your agreement to any such changes. If you do not agree to these Terms, you must discontinue using the Services.
4. Term
This Agreement will remain in full force and effect at all times until you cease using the Services, the Website, delete the App, and/or this Agreement is otherwise terminated in accordance with these Terms. Pinnacle Peak can suspend or terminate your access to the App and Services, in whole or in part, at any time, immediately and without notice. All terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.
5. Electronic Form/Communications
By accessing Services, you consent to having this Agreement provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal
mail, e-mail, or by posting notices in the App or on the Website. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
6. Access and Use of the Services
The App, the Website, the content offered in the App or on the Website (“Content”) and the Services offered are intended for your personal, noncommercial use in accordance with these Terms.
Subject to Section 18 addressing Force Majeure, Pinnacle Peak uses the means it believes are reasonable to provide access to the Services 24 hours a day, 7 days a week, and to provide necessary repair or maintenance operations required for the smooth operation of the Services. Pinnacle Peak disclaims any liability for any failure or deficiency in the performance of the Services for any reason, including but not limited to whether such reason may be maintenance, breakdown, or any event beyond Pinnacle Peak’s reasonable control.
You acknowledge that data conversion and transmission in the Services is subject to the possibility of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. Pinnacle Peak disclaims any liability for any such errors, omissions, delays, or losses. You acknowledge and agree that access, use, or download of the App and/or Services through connection to the Internet and/or use of mobile devices is inherently insecure and that information transmitted and received through such use may be subject to unauthorized interception, diversion, corruption, loss, access, and disclosure. Pinnacle Peak disclaims any liability for any adverse consequences whatsoever of your access, use, or download of the App and/or Services through such connection to the Internet, and/or such use of mobile devices, and disclaims any liability for any use by you of an Internet connection in violation of any applicable laws, or any violation of the intellectual property rights of another.
To access, use, or download the Services, you may be required to provide Pinnacle Peak with information about yourself (or the person on whose behalf you are accessing or downloading the Services). This information may include name, address, email address, telephone number, date of birth, and member identification number. By submitting such information to Pinnacle Peak, you hereby represent and warrant that any and all such information that you provide to Pinnacle Peak is true and correct, and you authorize Pinnacle Peak to use any method it chooses to verify the truth and accuracy of the information to the extent Pinnacle Peak needs to do so to protect its rights or other users of the Services. Pinnacle Peak may terminate your access to the Services if you fail to provide truthful and accurate information.
Pinnacle Peak has the right to modify the Content and Services at any time in its sole discretion. Except as otherwise set forth in a separate contract for a specific service, your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Pinnacle Peak in providing its products, services, Content, or any Services is to stop using the Services.
7. Children and Minors.
If you are under thirteen (13) years old, you may not access, use, or download the Services. If you are a minor (between 13 and 17 years of age) using the Services, your parent or guardian must consent to your use of the Services. By accessing, using, or downloading any of the
Services, you represent and warrant that you are eighteen (18) years old or older, or otherwise that your parent(s) or guardian(s) has consented to your use of the Services.
8. Carrier Charges.
You are responsible to pay carrier data, messaging, and other fees resulting from accessing the Services. Data and messaging (including SMS text messages) plans may be required to use certain features of the Services. Standard data and messaging charges, fees, and taxes from your carrier may apply. You are responsible to determine what fees may apply.
9. Security.
Pinnacle Peak has implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. If you wish to keep your communications to us private, you should not communicate with us using the Services.
10. Account Management
Some functionality of the Services requires you to have a user account associated with a username and password (“Account Credentials”) to securely access the functionality. You are solely responsible for maintaining the strict confidentiality of your Account Credentials. You shall not share your Account Credentials with any other person and shall not permit any other person to access or use the Services using your Account Credentials. You will be solely responsible for any damages or losses that may be incurred or suffered by you, Pinnacle Peak, or any other person or entity as a result of your failure to maintain the strict confidentiality of your Account Credentials. You shall immediately inform Pinnacle Peak in writing of any need to deactivate your account due to potential or actual security concerns. Pinnacle Peak disclaims any liability for any harm related to the misappropriation of your Account Credentials, your intentional or negligent disclosure of such Account Credentials to another person, or your unauthorized sharing of Account Credentials that may allow another person or entity to access or use the Services. We prohibit all forms of indirect and “spoofed” access.
11. Communication Services.
The Services may contain e-mail services, chat areas and/or other message, communication or other mechanisms designed to enable you to communicate with us (the “Communication Services”). All such communications, information, and content, as well as usernames, profiles, or similar materials you submit, upload, or communicate (collectively, “Distribute”) is referred to as “User Content.” You agree to use the Communication Services only to Distribute User Content that conforms to these Terms. Pinnacle Peak specifically disclaims any liability with regard to the User Content and any actions resulting from your participation in any Communication Services.
12. Proprietary Rights
The Services and all Content is owned by Pinnacle Peak or its licensors and is protected by laws governing copyrights, patents, trademarks, trade secrets, and/or other proprietary rights. In addition, Pinnacle Peak owns a copyright in the selection, coordination, arrangement, and enhancement of the Content and a copyright in the App and Website. All trademarks, service marks, trade names, and trade dress appearing on the App or Website (“Marks”) are proprietary
to Pinnacle Peak and/or our licensors or licensees. Except as otherwise permitted by applicable law, you agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any of the Marks, the Content, or the Services, in whole or in part, without Pinnacle Peak’s prior written consent. You may download Content for your personal, non-commercial use only as provided in these Terms, or as may be otherwise permitted by applicable law or by Pinnacle Peak from time to time, provided that you do not alter any such Content and you keep intact all copyright and other proprietary notices and you do not use the Content in any way that would express or imply an association between you and the products and services of Pinnacle Peak or any third party. You acknowledge that you do not acquire any ownership rights in any Content downloaded from the Services. Copying or storing of Content for other than personal use is expressly prohibited without prior permission from us or as may be permitted by applicable law. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Pinnacle Peak without express written consent. If you engage in any uses not permitted by these Terms, all permissions or licenses granted by Pinnacle Peak in these Terms shall automatically terminate.
Except for allowing you to use the Services for your personal use as set forth in the paragraph above, when you use the Services, you are not receiving a license or any other rights from Pinnacle Peak, including intellectual property or other proprietary rights of Pinnacle Peak. You understand that you have no rights to the Services or any other Pinnacle Peak property except as we indicate in these Terms.
13. Prohibited Conduct
You may only use the Services for lawful purposes in compliance with applicable laws. In your access, use, or download of the Services, you shall not
· Infringe any copyright, patent, right of privacy, right of publicity, trademark, trade secret, or other right of Pinnacle Peak or any third party;
· Abuse, defame, harass, or stalk any individual or other user of the Services;
· Interfere or attempt to interfere with, or damage or attempt to damage, the Services or the proper working of the Services, including, without limitation, through the use of cancel bots, denial of service attacks, flood pings, forged routing or electronic mail address information, harmful code, packet or IP spoofing, phishing, Trojan horses, viruses, or similar methods or technology;
· Use any deep-link, page-scrape, robot, spider, or other automatic device, program, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Services or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Services or any Content, to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Services;
· Misrepresent your identity, provide false information, impersonate another person or entity, misrepresent your affiliation with a person or entity, including, without limitation, Pinnacle Peak, create or use a false identity, or attempt to use another user’s account;
· Collect, reverse look-up, trace or seek to trace, manually or through automated means, information about other users of the Services without their express consent or other information relating to the Services;
· Use any meta tags or any other hidden text utilizing Pinnacle Peak name, service marks, trademarks, or product or service names;
· Engage in any activity that interferes with any third party’s ability to use or enjoy the Services;
· Probe, scan, or test the vulnerability of the Services or any network connected to the Services, or breach the security or authentication measures on the Services or any network connected to the Services;
· Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Pinnacle Peak’s systems or networks, or any systems or networks connected to the Services or Pinnacle Peak;
· Attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate any of the Services, or otherwise alter, defraud, or create false results from any of the Services;
· Create any product or service that competes directly or indirectly with any of the Services; or
· Assist any third party in engaging in any activity prohibited by these Terms.
14. Links
You may be able to access other websites or resources through links in the App or on the Website. Because Pinnacle Peak has no control over such sites and resources, you acknowledge and agree Pinnacle Peak is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials available from such sites or resources nor does Pinnacle Peak endorse any such sites or the products or services assessable on such sites. You further acknowledge and agree that Pinnacle Peak shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such site or resource.
15. Legal Notices
a. Disclaimer of Warranties.
PINNACLE PEAK WILL NOT BE HELD LIABLE, UNDER ANY CIRCUMSTANCE, FOR YOUR USE OF THE SERVICES AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE INFORMATION AND MATERIALS APPEARING ON OR IN THE SERVICES, WHICH ARE PROVIDED “AS IS.” PINNACLE PEAK MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SERVICES AT ANY TIME INCLUDING CHANGES TO THESE TERMS. PINNACLE PEAK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE CONTENT, SERVICES, PRODUCTS, LINKS OR OTHER ITEMS CONTAINED THEREIN. PINNACLE PEAK DOES NOT MAKE ANY REPRESENTATIONS THAT THE SERVICES OR ITS CONTENTS WILL BE ERROR FREE OR THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ALL CONTENT, PRODUCTS, AND THIRD-PARTY SERVICES ON OR OBTAINED THROUGH THE SERVICES, OR OBTAINED FROM A SITE TO WHICH THE SERVICES IS LINKED, ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. PINNACLE PEAK DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR ANY PRODUCT OR SERVICE ACCESSED FROM THE SERVICES OR A LINKED SITE. OTHER THAN AS REQUIRED BY LAW, UNDER NO CIRCUMSTANCE WILL PINNACLE PEAK BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED
BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES OR A LINKED SITE, OR YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM OR THROUGH THE SERVICES OR A LINKED SITE.
b. Liability Limitation.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PINNACLE PEAK OR ITS AFFILIATES BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICES, EVEN IF PINNACLE PEAK HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS, AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. MOREOVER, UNDER NO CIRCUMSTANCES WILL WE, OUR LICENSORS OR LICENSEES, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL. WE MAY CHANGE OR DELETE CONTENT OR FEATURES OF OUR SERVICES IN ANY WAY, AT ANY TIME, AND FOR ANY REASON OR NO REASON. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN PINNACLE PEAK‘S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED $100. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
c. Indemnity/Release.
You understand that you are personally responsible for your behavior while on the App or using the Services and agree to indemnify and hold Pinnacle Peak, and its affiliates, business partners, distributors, agents, representatives, and other authorized users, and their respective officers, directors, employees, and agents (collectively, the “Indemnified Parties”), harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) that the Indemnified Parties may incur in connection with any claim arising out of or related to your use of the Services or your violation of either these Terms, applicable law or the rights of any third party.
16. Governing Law; Disputes
These Terms shall be governed by and construed in accordance with the laws of the State of Arizona without application of conflict of laws rules. Exclusive jurisdiction and venue in connection with any dispute between you and Pinnacle Peak will rest in, and you and Pinnacle Peak each agree to submit to the exclusive jurisdiction of, the courts of the State of Arizona and the federal courts of the District of Arizona. You agree that in the event of any dispute between us, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action. YOU HEREBY
WAIVE ANY RIGHT YOU MIGHT HAVE TO RESOLVE ANY DISPUTE ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY, AND YOU WAIVE YOUR RIGHT TO TRIAL BY JURY. Any cause of action you may have with respect to Pinnacle Peak, the Services, or the Content must be commenced, if at all, no later than one year after the claim or cause of action arises or such claim or cause of action shall be barred. The date on which such claim or cause of action is discovered shall not delay the date, or otherwise result in a later date, by which a cause of action must commence.
17. Void Where Prohibited
Pinnacle Peak reserves the right to limit, in its sole discretion, the provision and quantity of any Services, Content, or feature, product, or services thereof to any person or geographical area, whether by reason of the local law applicable in such geographic area or otherwise. Any offer for any feature, product, or service made on the Services and/or affiliated services is void where prohibited.
18. Force Majeure
We will not be deemed to be in breach of these Terms or liable for any breach of these Terms or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, Internet outage, labor disturbance, earthquakes or floods, civil disorder, strikes, fire, pandemics, epidemics, or other disaster (including without limitation, natural, technological, or social).
19. Miscellaneous
Except as otherwise provided herein, these Terms and the Privacy Policy are the entire agreement between you and Pinnacle Peak concerning the Services. They supersede any and all prior or contemporaneous agreements between you and Pinnacle Peak relating to your use of the Services. Pinnacle Peak may assign these Terms, in whole or in part, at any time. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of this Agreement. The failure of Pinnacle Peak to partially or fully exercise any rights or the waiver of Pinnacle Peak of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by Pinnacle Peak or be deemed a waiver by Pinnacle Peak of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Pinnacle Peak under these Terms and any other applicable agreement between you and Pinnacle Peak shall be cumulative, and the exercise of any such right or remedy shall not limit Pinnacle Peak’s right to exercise any other right or remedy. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.