This Agreement (“Contract” or “Agreement”) is a legally binding contract between you (“You”), as a member, a registered guest and/or event participant, and CSH Pickleball Holdings, LLC, d/b/a SPF Pickleball, and any of its affiliates or subsidiaries, including, without limitation Clear Skies Hospitality, LLC (“SPF,” “Club,” “we,” or “us”). By signing this Agreement, you are agreeing to be bound to the terms of this Agreement. As a legally binding document, you may want to consult with legal counsel of your choosing and at your cost to provide advice to You regarding its terms. By signing this document, you are representing that you have the capacity to do so, including being at least 18 years of age. The terms of this Agreement (the “Terms”) are in addition to: the Terms of Use relating to use of the SPF website or application, which terms can be found at: https://www.playspf.com/legal/termsofuse; and the Privacy Policy, which can be found at: https://www.playspf.com/legal/privacy-policy. This Agreement, among other things, governs your access to and use of SPF facilities, coaches, and events at a SPF facility. SPF reserves the right to change or modify these Terms at any time and without prior notice to you. Any changes or modifications to this Agreement will be effective upon the changes being posted to the website at https://www.playspf.com. By executing this Agreement, you are agreeing to review the website for updates to this Agreement.
I. Use of Facilities and Services.
II. Registration with PlaySPF.com.
In order to access any SPF facility or use any of SPF’s services, you need to create an account through SPF’s website or its application (“Account”). You agree you will not authorize any other person to use your Account or transfer your Account to them. You are responsible for all activity that occurs on or through your Account.
To create an Account, you will be asked to provide us with certain of your personal information, including your name. In order to access any of the Services you will be asked to provide additional information such as your email address, mobile telephone number and credit card information. We use a third-party payment processor, Stripe (the “Payment Processor”) to process payments or credits in connection with your use of the Services. Your payment for any Services will also be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer. SPF is not responsible for any errors, omissions or damages caused or made by the Payment Processor. Further details about the personal information we collect and how we use it are set out in our Privacy Policy. More information about the Payment Processor may be found at https://stripe.com.
You agree to maintain complete, accurate, and up-to-date information in your Account. Your failure to maintain complete, accurate, and up-to-date Account information, including having an invalid or expired credit card on file, may result in your inability to access and use SPF’s facilities and/or services.
SPF can suspend or terminate your Account and/or to refuse any and all current or future use of its facilities or service for any reason, if you or your Guests violate this Agreement in any respect, or provide information that is untrue, inaccurate, not current or incomplete.
III. Consent to and Acknowledgement of Video Surveillance and Video Recordings
IV. Limited License to Use SPF Facilities.
You acknowledge that your use of the SPF’s facilities does not constitute a lease, but is rather a limited, revocable, non-exclusive, non-transferable contractual license to use, subject to the terms in this Agreement. In its sole discretion and without limiting any other rights hereunder, SPF may restrict, suspend, or terminate your access to SPF facilities in the event of fraud, trespassing, or violation of these Terms, or for any other lawful reason in the sole discretion of SPF.
V. Damages, Repair or Cleaning Fees
You are responsible for leaving SPF facilities in the condition it was in when you arrived. You are responsible for the cost of repair for damage to, or necessary cleaning of, SPF facilities resulting from your or your Guests’ violation of the terms of this Agreement in excess of normal “wear and tear.” If SPF, in its reasonable discretion, determines that excessive repair or cleaning is required, SPF reserves the right to charge the payment method designated in your Account for the reasonable cost of such repair and/or cleaning, as well as an additional service fee which shall not exceed $500 US Dollars per occurrence, and you agree to be responsible for payment of same. Any such amounts are non-refundable.
VI. Payment Terms; Authorization Hold
Any fees which SPF may charge you for the use of the SPF facilities or any of SPF’s services will be as set out on the SPF website or in its application at the time of purchase, and are non-refundable except as specifically noted with respect to your reservation or payment. SPF may change the fees at its sole discretion.
When you make a reservation on our website, we may place an authorization hold on your credit or debit card to ensure that funds are available for payment. The hold amount will be equal to the total reservation amount, including any applicable taxes and fees. Please note that the authorization hold is not a charge, and the funds will not be debited from your account at the time of reservation. The hold is simply a temporary hold on your funds to ensure that they are available for payment when your reservation is confirmed. The length of time that the authorization hold remains on your account may vary depending on your financial institution. Typically, holds are released within a few days of the reservation, but some financial institutions may take longer. Payment for your reservation will be processed once the reservation is confirmed. If the reservation is not confirmed, the authorization hold will be released and the funds will be returned to your account. If you cancel your reservation within the allowed time period, the authorization hold will be released and the funds will be returned to your account.
You agree that you shall be charged fees based on the length of time of your booking of the SPF facilities. If you exceed the amount of time for which you booked a SPF facility, then you shall be charged for such excess time. You do hereby consent to such excess time charges and to such overage charge.
If a credit card charge is declined, we will notify you to provide a valid replacement. Failure to provide a replacement within 48 hours may result in the suspension of your Account. If a payment is declined, refunded, cancelled, or charged back by your credit card issuing bank, or another person, you are not entitled to the return of any associated service fees (such as payment processing fees), irrespective of the reason for such decline, refund, cancellation, or charge back. SPF reserves the right, at its sole discretion, to review and refuse a payment or the processing of a payment if it suspects any fraudulent activity or for any reason whatsoever.
VII. License, Restrictions and Intellectual Property Rights
You will not use, copy, adapt, decompile, modify, reverse engineer, prepare derivative works from, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, or otherwise exploit the SPF website or application or any component thereof or any content therein, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise with respect to any intellectual property rights owned or controlled by SPF or its licensors, except for the licenses and rights expressly granted in this Agreement or expressly agreed in writing by SPF.
All intellectual property rights in and to the SPF website and/or application and any component thereof, and the SPF facilities, including, including but not limited to patents, copyrights, trademarks, industrial designs, trade secrets, and service marks, are the exclusive property of SPF or are licensed to SPF. You agree to abide by all applicable patent, trademark, copyright, and other laws, as well as any additional patent, trademark and copyright notices or restrictions contained on the SPF website or application and any component thereof. Any use of materials on the SPF website or application other than as permitted by this Agreement, including reproduction, modification, distribution, or republication, without prior written permission of SPF is absolutely prohibited. “SPF”, the SPF logo and other trade and/or service marks are the exclusive property of SPF (expressly including “Cucumber Club” and “Protect Your Fun”) and may not be used for any of the aforementioned purposes. Infringement of the rights in and to the SPF website or application will, in addition to any other right or remedy available to SPF, in and of itself, result in the termination of all your rights under this Agreement.
VIII. SMS Messaging
You consent to SPF sending you SMS messages in relation to your bookings and use of SPF facilities and for promotional purposes. Message and data rates may apply. SPF reserves the right to stop sending SMS messages at any time; you may opt-out at any time by replying from your mobile phone to any text from SPF with the word STOP, which opt-out will become effective within seven (7) days. It is important to note that opting out of SMS messaging may prevent you from receiving information necessary to properly use the facilities or services of SPF, such as room access codes and other important information.
IX. Third-Party Services
During use of SPF’s website, application, facilities, or services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party service providers, advertisers, or sponsors showing their goods and/or services through and with the approval of SPF. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between you and the applicable third party. SPF and its licensors shall have no liability, obligation, or responsibility for any such correspondence, purchase, transaction, services, or promotion between you and any such third party. In no event shall SPF or its licensors be responsible for any content, products, services, or other materials on or available from such third-party providers. You recognize, however, that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and SPF disclaims any and all responsibility or liability arising from such agreements between you and the third-party providers.
SPF may rely on third-party advertising and marketing supplied through the SPF website, application or at its facilities. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If you do not want to receive such advertising, you must notify us in writing. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with in relation to the SPF website, application, or facilities.
X. Indemnity
You agree to release, defend, indemnify, and hold harmless SPF and its respective officers, directors, agents, subsidiaries, joint ventures, employees, landlords, tenants and third-party service providers, from all claims, demands, losses, liabilities, costs, expenses, obligations and damages of every kind and nature, known and unknown, including reasonable legal fees, arising out of your our your Guests’: (1) improper use of or access to the Service; (2) violation of any provision contained in this Agreement; (3) violation of any law or the rights of any other third party (including, without limitation, any copyright, intellectual property or privacy right); or (4) any claim that you or your Guests caused damage to any of the SPF facilities. This indemnification obligation will survive the termination of this Agreement.
XI. Disclaimers
WE PROVIDE OUR SERVICE AND ANY CONTENT, MATERIALS, INFORMATION, SOFTWARE AND PRODUCTS INCLUDED THEREIN FOR USE ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPF DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, PERFORMANCE, COMPATIBILITY, SECURITY OR ACCURACY; AND THAT THE QUALITY OF THE SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH SPF WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES AND ANY THIRD-PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT: (A) THE LOCKING MECHANISM, IF ANY, USED FOR THE SPF FACILITIES IS PROVIDED BY A THIRD PARTY, AND THAT SPF SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO ANY FAILURE OF THE LOCKING SYSTEM TO WORK IN ITS INTENDED MANNER, INCLUDING WITHOUT LIMITATION ANY LOSS OR THEFT OF YOUR PROPERTY; (B) SPF FACILITIES ARE LOCATED IN BUILDINGS WHICH ARE NOT OWNED OR MANAGED BY SPF AND SPF MAKES NO REPRESENTATIONS OR WARRANTIES RELATING THERETO. ADDITIONALLY, SPF MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OF ANY SPF SPACE FOR ANY PARTICULAR ACTIVITY NOR ANY ACTIVITIES THAT ARE CARRIED ON IN THE SPF FACILITIES AND SHALL NOT BE LIABLE IN ANY WAY FOR SUCH ACTIVITIES.
WE DO NOT WARRANT THAT THE SPF WEBSITE, APPLICATION OR FACILITIES WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR THAT ANY OF THEM WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS, OR THAT IT IS SAFE, SECURED FROM UNAUTHORIZED ACCESS, IMMUNE FROM DAMAGES, FREE OF MALFUNCTIONS, BUGS OR FAILURES, INCLUDING, BUT NOT LIMITED TO HARDWARE FAILURES, ORIGINATING EITHER FROM SPF OR ITS PROVIDERS.
NEITHER YOU NOR US SHALL HAVE ANY LIABILITY TO THE OTHER ARISING FROM CIRCUMSTANCES BEYOND OUR OR YOUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD OR NATURE, POWER, COMMUNICATIONS, SATELLITE OR NETWORK FAILURES, UNAUTHORIZED ACCESS OR THEFT, ACTS OF WAR OR TERROR; OR LABOR DISPUTES OR STRIKES.
XII. Limitation of Liability
SPF AND ITS OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, SUPPLIERS, SUB-CONTRACTORS, AGENTS AND LANDLORDS, WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, ARISING FROM OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE SERVICES OR FROM ANY FAULT, OR ERROR MADE BY OUR EMPLOYEES OR ANYONE ACTING ON OUR BEHALF, OR FROM YOUR RELIANCE ON THE CONTENT OF THE SERVICES OR FROM ANY DENIAL OR CANCELLATION OF YOUR ACCOUNT.
IN NO EVENT SHALL SPF’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO SPF IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR THE AMOUNT OF FIFTY US DOLLARS, WHICHEVER IS GREATER. YOU UNDERSTAND AND AGREE THAT IF YOU OBTAIN OR OTHERWISE DOWNLOAD CONTENT, MATERIAL OR DATA THROUGH OR FOR THE USE OF THE SPF WEBSITE OR APPLICATION AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA AND/OR USE OF SPF’S WEBSITE OR APPLICATION. IN ADDITION, SPF DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA ITS WEBSITE OR APPLICATION OR EITHER IS ACCURATE, COMPLETE, OR UP TO DATE. TO THE EXTENT APPLICABLE UNDER LOCAL LAW, NOTHING IN THIS AGREEMENT SHALL LIMIT SPF’S LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY OUR GROSS NEGLIGENCE.
Your use of the Services may be subject to various local, state, national, or international laws, and you may have rights which vary from jurisdiction to jurisdiction. Because some jurisdictions may not allow limitations on warranties and/or the exclusion or limitation of damages, the limitations and/or exclusions found herein may not apply to you. Any provision found herein shall not be enforceable solely to the extent that it is prohibited by an applicable law.
XIII. Notices
SPF may send you notices by means of email to your email address on record in SPF’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in your Account. You may give notice, and address any complaint or claim to SPF (such notice, complaint or claim shall be deemed given when received by SPF) at any time by means of email to info@playspf.com.
XIV. Applicable Law; Jurisdiction and Disputes
These Terms are governed by and construed in accordance with the laws of the State of Illinois and the laws of the United States applicable therein, without regard to the conflicts of laws provisions thereof. The parties submit to the jurisdiction of the courts of Cook County, Illinois and agree that such courts shall have exclusive jurisdiction over any dispute arising hereunder or relating to SPF.
In the event of any dispute or claim arising under this Agreement or related in any way to SPF, you agree to have such dispute determined by arbitration before a single arbitrator appointed by the American Arbitration Association. The location of any such arbitration proceeding shall be Chicago, Illinois. NEITHER YOU NOR US WILL HAVE THE RIGHT TO LITIGATE ANY CLAIM IN COURT OR HAVE A JURY TRIAL ON ANY CLAIM, OR TO ENGAGE IN PREARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES OR PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT AND WITHOUT WAIVING EITHER PARTY’S RIGHT TO APPEAL SUCH DECISION, SHOULD ANY PORTION OF THIS SECTION XIV BE DEEMED INVALID OR UNENFORCEABLE, THEN THIS ENTIRE ARBITRATION SECTION XIV (OTHER THAN THIS SENTENCE) SHALL NOT APPLY.
XV. Termination
You agree that SPF, in its sole discretion and for any or no reason, may terminate your Account and remove and discard all or any part of your Account. SPF may also in its sole discretion and at any time discontinue providing access to its facilities or services or any part thereof, with or without notice. You agree that any termination of your Account may be effected without prior notice, and you agree that SPF shall not be liable to you for such action. These remedies are in addition to any other remedies SPF may have at law or in equity.
You may terminate your Account at any time by deleting the Application from your device, ceasing all use of SPF’s facilities and services, and requesting SPF to cancel your Account via email sent to info@playspf.com.
XVI. General
No joint venture, partnership, employment, or agency relationship exists between you and SPF as a result of these Terms or use of SPF’s facilities or services. These Terms may not be assigned by you (whether in whole or in part) without the prior written approval of SPF. These Terms may be assigned without your consent (in whole or in part) by SPF, including to (i) a parent or subsidiary, (ii) an acquirer of substantially all of our assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of SPF to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SPF in writing. These Terms comprise the entire agreement between you and SPF and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
XVII. Disclaimer and Assumption of Risk
You acknowledge to follow and respect all preventive measures promulgated by government authorities and SPF (“Measures”) to prevent the spread of COVID-19 and to inform SPF immediately if you become aware that any person carrying the virus frequented the premises or that any of the Measures were breached.
You acknowledge that SPF does not make any representations or warranties to the effect that the SPF facilities are exempt from the virus causing COVID-19 or that no person infected by the virus causing COVID-19 has recently frequented those facilities. Therefore, subject to applicable laws, you hereby release, waive and renounce in favor of SPF, its officers, directors, managers, members, shareholders, employees and agents any and all liabilities, damages, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses (including reasonable legal fees), interest, penalties, obligations, reasonable costs, or reasonable expenses of any and all investigations, proceedings, judgments, and settlements sustained or incurred by you, directly or indirectly, relating to your activities in SPF facilities or the virus causing COVID-19 and hereby grant to SPF a complete, total, and final release and discharge with respect to those claims.