Terms and Waiver & Release of Liability
By indicating that you accept this Terms and Waiver & Release of Liability (the “Agreement”), you agree to be bound by its terms and conditions. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE ANY OF OUR OFFERINGS. These offerings include golf simulator bay rentals, products, coaching, and events, and for the purposes of this Agreement, all such offerings are called the “Services”.
This Agreement constitutes a legally-binding contract between you and Dryvebox. Please note that Sections 2, 3, 9, and 13 contain waivers, releases, and arbitration and indemnification agreements regarding your participation. Please read those Sections, and this entire Agreement, carefully.
You acknowledge that you have read this Agreement and understand that it contains a RELEASE OF LIABILITY in favor of Dryvebox, Inc., its officers, directors, owners, investors, managers, employees, agents, independent contractors, volunteers, affiliates, subsidiaries, related operating companies, insurance carriers, suppliers, successors, and assigns (collectively herein, the “Company” or “Dryvebox”). This Agreement applies to today and each time you (1) enter Company premises or (2) use the Services in the future.
1. Assumption of Risk
1.1. You understand that your use of Company facilities, equipment, premises, and/or the Services will be undertaken at your sole risk. You agree that you are voluntarily participating in activities and using the Company’s facilities, equipment, premises, and/or Services and you ASSUME ALL RISK of injury, illness, damage or loss to yourself (including without limitation serious injury, severe illness, illness related to pandemic or epidemic (such as COVID-19), or death) or your property that might result from such participation and/or use (including without limitation) any loss or theft of any personal property.
1.2. You represent that you are physically capable of participating in exercise and other activities and services provided by Company or at Company’s premises. You understand that no exercise/activity program should be undertaken without the consent of a medical doctor and you are responsible for obtaining such consent.
1.3. You understand and appreciate that physical exercise and activities (including, without limitation, golf) can be inherently strenuous, dangerous, and subject to great risk of injury, including, but not limited to, serious injury, severe illness, or death, and You expressly assume the responsibility for such inherent risk.
1.4. You recognize that golf simulators are instructional in nature.
1.5. You represent that: You are not currently experiencing (and have not experienced for the last 14 days) any symptom of illness possibly related to COVID-19, such as cough, shortness of breath or difficulty breathing, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, or loss of taste or smell; you have not traveled to areas of high infection of COVID-19 within the last 14 days; you do not believe you have been exposed to someone with a suspected and/or confirmed case of COVID-19 in the last 14 days; you have not been diagnosed with COVID-19 and not yet cleared as non-contagious by state or local public health authorities; and you are following all CDC recommended guidelines as much as possible and limiting your exposure to COVID-19; in the future, you will not enter Company premises if you cannot make the above representations at that moment.
1.6. You acknowledge the contagious nature of COVID-19; that Company has put in place preventative measures to reduce the spread of COVID-19 (and related illnesses); and that even so, Company cannot guarantee that you will not become infected with COVID-19.
2. Express Waiver and Release of Liability (Including for Company Negligence)
2.1. In consideration for being allowed to enter Company premises, participate in activities there, and/or use the Services, you agree that, with the exception of any matters in which liability cannot be excluded under applicable law, Company will not be liable for any claims, demands, injuries, loss, liability, damages, costs, expenses, actions, or causes of actions whatsoever in respect of yourself or your property (including, without limitation, lost or damaged personal possessions), arising out of or connected with the use of any of the facilities, equipment, premises, and/or Service. YOU HEREBY EXPRESSLY RELEASE AND DISCHARGE AND COVENANT NOT TO SUE Company, its officers, directors, owners, investors, managers, employees, agents, independent contractors, volunteers, affiliates, subsidiaries, insurance carriers, suppliers, successors, and assigns from any and all such claims, demands, injuries, loss, liability, damages, costs, expenses, actions, or cause of action, notwithstanding the actions, omissions, or any negligence on the part of one or more of these parties.
2.2. In particular and by way of example, you agree that, to the extent permitted by applicable law, Company will not be liable or responsible for any injury to you (including, without limitation, serious injury, severe illness, illness related to pandemic or epidemic (such as COVID-19), or death) which may occur as a result of the following, regardless of Company’s actions, omissions, and/or negligence:
2.2.1. Your attendance at Company premises and exposure to other individuals within Company premises.
2.2.2. Your use of the Services, any amenities, and/or equipment provided by Company;
2.2.3. Your participation in any activity, class, program, and/or instruction provided by Company or on Company premises;
2.2.4. The sudden and unforeseen malfunctioning of any amenities and/or equipment provided by Company or on Company premises;
2.2.5. Company instruction, training, supervision, or dietary recommendations; and/or
2.2.6. Your being struck by others or by equipment used by others while they are participating in any activity, class, program, and/or instruction provided by Company or on Company premises.
2.2.7. Your slipping and/or falling while in the facility or on Company’s premises, including, but not limited to, adjacent sidewalk areas, stairs, and elevators.
2.3. You agree that this Agreement, including for any Company negligence, shall be binding upon my spouse, heirs, executors, administrators, and assigns. The limitations of liability set forth in this Section 9 also apply to claims between you and Dryvebox’s affiliates, and any representatives, shareholders, employees, agents, contractors, insurance carriers, predecessors and successors in interest, officers and directors of Dryvebox or its affiliates (individually and collectively, the "Dryvebox Parties"), and such Dryvebox Parties shall be considered intended third-party beneficiaries with respect to this Section.
3.1. YOU AGREE TO INDEMNIFY, REIMBURSE, AND HOLD HARMLESS Company against any claims (including, without limitation, for damages and any legal costs and expenses) arising out of or connected to (a) your use of any of the facilities, equipment, premises, and/or the Services, (b) your violation of this agreement, (c) your negligence, recklessness, or willful misconduct, (d) any acts or omissions of, or any claims brought by, any other person who you allow to use or access Dryvebox’s Services under your Account, including but not limited to the following:
3.1.1. Claims made by you, your parent(s)/legal guardian(s), or others arising out of or connected to an injury (including, without limitation, serious injury, severe illness, illness related to pandemic or epidemic (such as COVID-19), or death) to you; and/or
3.1.2. Claims of co-participants, rescuers, or others arising out of or connected to your conduct at Company premises or using Company facilities, equipment, premises, and/or services.
4. Compliance with Law, Prohibited Conduct
4.1. You agree to comply with all applicable laws, rules, and regulations when using the Services.
4.2. At our sole discretion, we may prohibit your further use of the Services if you fail to comply with any provisions of this Agreement or any applicable additional terms or rules governing participation.
4.3. In addition to any other restrictions and limitations set forth in this Agreement, you will not use our Services in any manner that would violate any applicable, contract, intellectual property right, privacy right, or other third-party right. Furthermore, you will not engage in any action that is intended to: (i) systematically collect information about our Services or users, or obtain information about our Services or users, including competitively sensitive information, proprietary information, or other types of non-public information; (ii) damage, disable, disrupt, or interfere with the operation or use of the Services; or (iii) use the Services for a commercial purpose or use the Services other than for their intended purpose.
5. Safety Rules
5.1. By entering any Company facility, using the Services, or participating in any activity provided by Company, you agree to abide by the following safety rules, as well as other safety rules communicated or posted at the facility and/or online:
5.1.1. All individuals must hit from the mat only (i.e., individuals must not swing golf clubs while standing off of the mat) and must aim toward the golf simulator screen or net.
5.1.2. Only the individual who is taking a turn may stand on the mat. All other players, spectators, and other individuals must stay behind the designated mat boundary.
5.1.3. All individuals under the age of 16 must be supervised by an adult while on Company premises.
5.1.4. All individuals must refrain from throwing golf balls.
5.1.5. All individuals must use common sense and be mindful of their circumstances/surroundings to avoid injuring other persons or property.
5.1.6. All individuals must follow all Company guidelines and preventative measures to reduce the spread of COVID-19 (and related illnesses).
6.1. You will immediately report any accident or injury suffered in Company’s facilities to a staff person and will provide a written report from your doctor within a reasonable time upon request.6.2. You authorize emergency medical care and assume all related costs.
7. Property Damage
7.1. You agree to pay for damage to Company equipment and premises and third party property caused by you and/or your guest’s (or guests’) careless use of equipment or other intentional or negligent acts.
8. Permission to Use Likeness; Information Rights
8.1. You grant Company permission to use your likeness in photographs and video in any and all of its publications and in any and all other media, in perpetuity, and for other use by Company. You will make no monetary or other claim against Company for the use of such photographs and video.
8.2. All trademarks, trade names, service marks, logos, and trade dress that we use in connection with our Services are owned by or licensed to Dryvebox and are protected under both United States and foreign laws. Dryvebox’s trademarks include DRYVEBOX, DRYVEBOX-derivative marks, and other marks and associated logos. All trademarks, trade names, service marks, logos, and trade dress used in connection with our Services that are not owned by us are the property of their respective owners. Dryvebox and our licensors reserve all rights in and to all of the foregoing. You must not use any of our trademarks, trade names, service marks, logos, or trade dress in connection with any product or service that is not ours, or in any manner that is likely to cause confusion.
9.1. If you are consenting for a minor participant, you represent that you are the minor’s parent or legal guardian or you have permission from the minor’s parent or legal guardian to consent on behalf of the minor’s parent or legal guardian to, among other things and as set forth more fully in Sections 1-7 above and 9.2 below, assume all risk and release Company from all liability for any injury (including, without limitation, serious injury or death) to the minor.
9.2. As set forth more fully in Sections 1-7 above as applied to the minor participant, you expressly:
9.2.1. Assume all risk of the minor’s injury (including, without limitation, serious injury, severe illness, illness related to pandemic or epidemic (such as COVID-19), or death) or loss;
9.2.2. Release Company from all liability for any claims for such injury or loss arising out of or connected to the minor’s entry onto Company premises and/or minor’s use of any Company facilities, equipment, amenities and/or Services, regardless of whether such injury or loss was caused by Company negligence; and
9.2.3. Agree to indemnify, reimburse, and hold harmless Company against any claims (including for damages and any legal costs and expenses) arising out of or connected to the minor’s use of any of the Services, facilities, equipment, and/or premises of Company.
9.3. Each section in this Agreement applies to the minor (e.g., minor’s entry on Company premises, use of Company equipment or facilities, participation in any services or instruction provided by Company or on Company premises, and/or potential injury resulting from any such entry, use, participation, or similar activities).
10.1. Registering an Account. You may set up a Dryvebox user account (“Account”) at any time. To register, you must confirm that you are at least 18 years of age. You may not create an Account or use another user’s Account to access the Services if you are not at least 18 years old. Additionally, you may only create one Account for your use. If Dryvebox determines that an Account is a duplicate or additional Account of an individual user, we may take the steps necessary to remove or disable the additional or duplicate Account.
10.2. Account Information; Payment Method. When you register for your Account, you will be asked to provide some personal information, including a phone number and email address. You may also provide a payment method (e.g., a bank-issued credit or debit card or other accepted third-party payment account information) (“Payment Method”) then or in the future. You may add additional accepted Payment Methods to your Account at any time. Make sure the information you provide is accurate, complete, and up-to-date. You are responsible for ensuring its accuracy and keeping it up-to-date. If your Account information is not accurate, complete, and up-to-date, you may not be able to use our services.
10.3. Account Security and Usage. The security of your Account is important to us. Please provide unique account information, and do not allow anyone else to use your Account. If you do allow someone else to access your Account or use any services ordered under your Account, you will be responsible for such access or use. Furthermore, you will immediately stop using our services if you have been suspended or terminated from the service, and you may not create or use another Account in an effort to circumvent such suspension or termination.
11.1. Prices and fees. Prices are subject to change by Dryvebox at any time. In the event Dryvebox changes the price of a membership, we will provide notice of such change, such increase will take effect in the next billing cycle, and you may cancel your membership without penalty, ending at the start of the next billing cycle, if you do not wish to continue your membership at the new price.
11.2. You may be required to pay additional amounts in connection with our Services, including cancellation fees, cleaning fees, and fees for damages, as well as applicable taxes and other governmental fees.
11.3. Payment and Billing. This Agreement authorizes us to charge your Payment Method for all amounts owed in connection with any use of our Services under your Account. To make this possible, you also authorize us to update information regarding your Payment Method as provided by our payment processor, your issuing bank, or the applicable payment network. If there is an error related to your payment, we may correct the error and revise your payment accordingly. You can access your Account history, including any charges resulting from your use of our Services, by logging onto your Account or, if you do not have an account, by contacting us at firstname.lastname@example.org.
11.4. All payments for Services are non-transferable. Unless otherwise specified in writing in an order form or in the description or sales materials for a product or service, all sales are final and there are no refunds or credit for canceled or returned products or services. Dryvebox reserves the right to terminate an individual’s enrollment in any program or membership at any time. If such termination is due, in the sole judgment of Company, to the unsafe, disruptive, uncooperative, negligent, reckless, or otherwise improper acts or omissions of, or violation of any policy or rule of Company by the you, all amounts previously paid will be forfeited.
12. Your Information
12.2. Feedback. You may send questions, survey responses, comments, suggestions, ideas, or other feedback related to Dryvebox or our Services (collectively, "Feedback"). You understand that your submissions are voluntary, and we may use your Feedback without any restriction or obligation to compensate you or keep the Feedback confidential. You represent and warrant that any Feedback you submit (and that we may use) is not confidential, proprietary, or subject to the rights of any third party (including contractual, intellectual property, or privacy rights). If you choose to provide Feedback, such submitted Feedback will automatically become the property of Dryvebox.
13. Dispute Resolution and Arbitration
13.1. Customer Service. We are committed to providing you with an amazing experience, but when that is not possible we will provide an efficient and effective process for resolving your concerns or claims. If you have any compliments, questions, concerns or complaints regarding our Services, or if you incur any loss, damage or injury related to our Services, please contact us at email@example.com. Please provide: (i) your name, Account information, and preferred contact information, and (ii) a brief description of the event. Our customer service team will contact you for any additional necessary information and attempt to resolve the matter.
13.2. Arbitration Agreement. In the event we are not able to resolve your concerns informally, either party may initiate a binding arbitration proceeding administered by Judicial Arbitration Mediation Services (JAMS). You and Dryvebox each agree to notify the other party of the dispute in writing at least 30 days prior to initiating an arbitration. You must send your notice of dispute to Dryvebox by email to firstname.lastname@example.org. If Dryvebox initiates arbitration, we will send our notice of dispute by email to the address on your Account. Your notice of dispute must include: (i) your name, Account information, and preferred contact information, and (ii) a brief description of the events leading to your dissatisfaction or loss, and (iii) your request to resolve the claim. Following receipt of notification, the parties will attempt in good faith to negotiate an informal resolution. If the parties are unable to resolve the dispute within 30 days, either party may commence arbitration by filing a written Demand for Arbitration (available at www.jamsadr.com
13.3. The arbitration will be administered by JAMS under its Comprehensive Arbitration Rules & Procedures (https://www.jamsadr.com/rules-comprehensive-arbitration/
) or its Streamlined Arbitration Rules & Procedures (https://www.jamsadr.com/rules-streamlined-arbitration/
), generally depending on the value of the dispute, and as amended by this Agreement. The JAMS rules will govern payment of all arbitration fees except as set forth in this Agreement. If you initiate arbitration, you will be responsible for up to $100 in arbitration filing fees and Dryvebox will pay arbitration filing fees in excess of $100. Dryvebox will pay the filing fees for any arbitration it initiates. Dryvebox will only seek reasonable attorneys’ fees and costs in arbitration if your claims are objectively baseless, duplicative, or brought to harass Dryvebox. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. The arbitrator will have the authority under this contract to conduct in-person appearances only in San Francisco, California, or at the nearest available JAMS location to your use of the Services if the dispute relates to your use of the Services. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator may award any individualized remedies that would be available in court, including temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
13.4. Binding Individual Arbitration. YOU AND DRYVEBOX MUTUALLY AGREE TO RESOLVE ANY DISPUTES BETWEEN US EXCLUSIVELY THROUGH FINAL AND BINDING INDIVIDUAL ARBITRATION. Except for disputes described in Section 13.6 below, all disputes arising out of or relating to this Agreement or our Services or any aspect of the relationship between you and Dryvebox, whether based in contract, tort (including negligence), statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. YOU AGREE THAT DRYVEBOX AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. The validity, enforceability, revocation, interpretation, or application of this arbitration provision will be decided by an arbitrator and not by a court or judge.
13.5. Class Action Waiver. You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class or collective action.
13.6. Exclusions and Limitations. This arbitration agreement shall not require arbitration of the following types of claims brought on an individual basis: (1) disputes or claims that may be brought in small claims court; (2) claims of sexual assault or sexual harassment occurring in connection with your use of the Services; (3) disputes or claims that arise from actual or threatened infringement, misappropriation, or other violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and/or (4) claims arising from loss of life. Furthermore, this arbitration agreement does not prevent either party from seeking emergency injunctive relief from any court of competent jurisdiction as necessary to prevent imminent harm or to otherwise address exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack, security threats, data breach, confidentiality breach, infringement or misappropriation of intellectual property, etc.).
13.7. This arbitration agreement also applies to claims between you and Dryvebox’s affiliates, and any representatives, shareholders, employees, agents, contractors, insurance carriers, predecessors and successors in interest, officers and directors of Dryvebox or its affiliates (individually and collectively, the "Dryvebox Parties"), and such Dryvebox Parties shall be considered intended third-party beneficiaries of this arbitration agreement.
13.8. California consumers may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
14. Third-Party Materials and Services
14.1. For your convenience, our Services may provide access or links to, or allow for the routing or transmission of, third-party information, products, services and other materials (“Third Party Materials”). In addition, the Services may include referrals to third-party services or enable third parties to provide services to you ("Third Party Services"). By using the applicable Services functionality (e.g., by clicking an applicable link or button provided to you), you are directing us to access, route and transmit the applicable Third Party Materials to you and/or enable the applicable Third Party Services to be provided to you. Please be aware that Dryvebox has no control over and is not responsible for these Third Party Materials or Third Party Services that you choose to use.
15.1. If any part of this Agreement is found to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect.
16.1. You understand and agree that no oral or written communications can or will alter the contents of this Agreement.
17. Governing Law & Venue
17.1. This Agreement is governed by the laws of California.
17.2. If it is determined, notwithstanding Section 13, that a dispute between the parties is not subject to arbitration as set forth in Section 13 (and such dispute cannot be heard in small claims court), then such dispute will be resolved exclusively in the state or federal courts of California and the United States, respectively, sitting in San Francisco County, California, and the parties hereby submit to the jurisdiction of such courts for such purpose. For clarity, the preceding sentence does not prevent either party from seeking emergency injunctive relief from any court of competent jurisdiction as set forth in Section 5.6 above. and the parties hereto agree to the venue of San Francisco County.
18. Termination and Updates
18.1. Dryvebox may, without notice and in our sole discretion, terminate this Agreement and/or your ability to access or use our Services; and modify, suspend or discontinue all or a part of our Services for any reason at any time. The following provisions of this Agreement will survive and continue in effect notwithstanding any such termination: Sections 1-9, 12-13, and 15-18.
18.2. We may make changes to this Agreement and any additional terms from time to time. If we make changes, we will provide notice of such changes, such as by sending you an email or posting the amended Agreement or additional terms on our website and updating the "Last Updated" date below. Unless otherwise stated in our notice and except for the waivers and releases in Sections 2 and 9 and the arbitration agreement of Section 13, the amended Agreement or additional terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement or additional terms incorporating such changes, or otherwise notified you of such changes. If you do not agree to the amended Agreement or additional terms, you must stop accessing and using our Services.
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By indicating that you accept, you acknowledge that you have read this Agreement and understand all of its terms. You agree to this Agreement voluntarily and with full knowledge of its significance. You fully understand that you are hereby relinquishing substantial legal rights, including the right of financial recovery for injury, whether the injury results from the inherent risks of the activity or from the ordinary negligence of Company. You expressly agree that this Agreement shall be binding upon your spouse, parents/legal guardians, heirs, executors, administrators, and assigns.
Last updated: 07/22