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Pickleball Ben Hershey

MEMBERSHIP TERMS & AGREEMENT

This Membership Agreement (“Contract” or “Agreement”) is a legally binding contract between you (“You,” or “Member”), as a member, and PickleMall, Inc., a Delaware corporation. (“PickleMall,” “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 are in addition to: the Terms of Service relating to use of the PickleMall website or application, which terms can be found at: https://thepicklemall.com/TermsOfService; and the Privacy Policy, which can be found at: https://thepicklemall.com/PrivacyPolicy. This Agreement, among other things, governs your access to and use of PickleMall facilities, PickleMall Coaches, and events at a PickleMall facility. PickleMall 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://thepicklemall.com. By executing this Agreement, you are agreeing to review the website for updates to this Agreement.

I. Use of Picklemall Facilities and Services.

  1. General Use. You agree and understand that you will only PickleMall facilities and services: 1) in a manner that complies with the applicable laws of the location where you are using them; 2) for personal non-commercial uses; and in compliance with the rules and regulations of the PickleMall facilities you are using; and 4) in compliance with this Agreement.

  2. Guests. You agree and understand that any Guests[1] you invite and/or allow to use PickleMall facilities and services must also comply with the requirements in the preceding paragraph and that ultimately it is your responsibility to ensure that they do. You are responsible for any Guests you invite to use PickleMall facilities, including their conduct and compliance with the requirements above. You are responsible for ensuring that your Guests sign the waiver of liability form on the PickleMall website, available at:_______. You agree to be responsible for any damage or violation that occurs as a result of the behavior of You or your Guests. It is your responsibility to inform your Guests of our policies and ensure that they abide by them. You agree you will not allow your Guests to use PickleMall facilities without your physical attendance at all times.

  3. Prohibited Activities. You agree that neither you nor any of your Guests shall:

    1. Use the Services for any inappropriate purposes, including but not limited to drug use, alcohol abuse, gambling, prostitution, pornography, sexual activity, violent, dangerous, or threatening behavior, or any other purpose unrelated to engaging in the sport of pickleball or which is reasonably likely to reflect negatively on PickleMall.

    2. Smoke or vape in the PickleMall Facilities or allow any candles, incense sticks, or naked flames in them.

    3. Make excessive noise in the PickleMall facilities, nor create any noise, music or loud sounds, nor conduct any other activity which would in PickleMall’s judgment disturb other PickleMall clients, guests, or other tenants in any building containing PickleMall facilities.

    4. Damage, alter, install, remove, or modify any fixtures, equipment, machinery, or appliances in any PickleMall facilities.

    5. Allow persons under the age of 18 to use PickleMall facilities without being accompanied by at least one adult supervisor over the age of 18, and at least one adult supervisor for every four minors.

    6. Charge any fee to any person in connection with the use of a PickleMall facility, whether for private lessons or otherwise, without PickleMall’s express written consent.

    7. Treat other users of PickleMall facilities in a discourteous, disrespectful or inappropriate manner.

    8. Fail to wear appropriate clothing, including failing to wear: a shirt; pants, shorts, dress, or skirt; or athletic footwear.

    9. Wear clothing bearing obscene content or images.

  4. Responsibility for Personal Property. PickleMall is not responsible for any property of you or your Guests.

  5. Reporting Misconduct: If you believe that any person associated with PickleMall or any person in PickleMall’s facilities, have interacted with you or others, whether online or in person, inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior; (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to PickleMall. Note, however, that your reporting the activity to us does not obligate PickleMall to take any action beyond that required by law, if any, or cause us to incur any liability.

II. Registration with ThePickleMall.com.

In order to access any PickleMall facility or use any of PickleMall’s services, you need to create an account through PickleMall’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. PickleMall 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 PickleMall’s facilities and/or services.
PickleMall 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

  1. Video Surveillance: For the safety and security of PickleMall members, staff, and guests, our facilities are monitored by video surveillance. You agree, both in this Agreement, and by using PickleMall facilities that you consent to being recorded by these systems.

  2. PickleMall facilities make use of video replay technology, which allows recording of your activities at a PickleMall facility (for example, you may order a video replay of a specific shot).You consent to the use of our video replay technology and acknowledge that you, your Guests, and others may be recorded on video. You also consent to the display of your name, image, and likeness in any such recordings. We may use the recorded data for any lawful purpose, including but not limited to, research, development, analysis, marketing, and social media. We may also share the recorded data with third-party service providers who assist us in improving our service. We may retain the recorded data for as long as reasonably necessary to achieve the purposes for which it was collected, or as required by law. We may delete or anonymize the recorded data when it is no longer needed.

IV. Limited License to Use PickleMall Facilities.

You acknowledge that your use of the PickleMall’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, PickleMall may restrict, suspend, or terminate your access to PickleMall facilities in the event of fraud, trespassing, or violation of these Terms, or for any other lawful reason in the sole discretion of PickleMall.

V. Damages, Repair or Cleaning Fees

You are responsible for leaving PickleMall 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, PickleMall facilities resulting from your or your Guests’ violation of the terms of this Agreement in excess of normal “wear and tear.” If PickleMall, in its reasonable discretion, determines that excessive repair or cleaning is required, PickleMall 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 PickleMall may charge you for the use of the Services will be as set out on the the PickleMall website or in its application at the time of purchase, are inclusive of any taxes payable, and are non-refundable except as specifically noted with respect to your reservation or payment. PickleMall 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 PickleMall facilities. If you exceed the amount of time for which you booked a PickleMall 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. PickleMall 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 PickleMall 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 PickleMall or its licensors, except for the licenses and rights expressly granted in this Agreement or expressly agreed in writing by PickleMall.


All intellectual property rights in and to the PickleMall website and/or application and any component thereof, and the PickleMall Facilities, including, including but not limited to patents, copyrights, trademarks, industrial designs, trade secrets, and service marks, are the exclusive property of PickleMall or are licensed to PickleMall. 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 PickleMall website or application and any component thereof. Any use of materials on the PickleMall website or application other than as permitted by this Agreement, including reproduction, modification, distribution, or republication, without prior written permission of PickleMall is absolutely prohibited. “PickleMall”, the PickleMall logo and other trade and/or service marks are the exclusive property of PickleMall and may not be used for any of the aforementioned purposes. Infringement of the rights in and to the PickleMall website or application will, in addition to any other right or remedy available to PickleMall, in and of itself, result in the termination of all your rights under this Agreement.

VIII. SMS Messaging

You consent to PickleMall sending you SMS messages in relation to your bookings and use of PickleMall facilities and for promotional purposes. Message and data rates may apply. PickleMall 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 PickleMall 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 PickleMall, such as room access codes and other important information.

IX. Third-Party Services

During use of PickleMall’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 PickleMall. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between you and the applicable third party. PickleMall 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 PickleMall 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 PickleMall disclaims any and all responsibility or liability arising from such agreements between you and the third-party providers.


PickleMall may rely on third-party advertising and marketing supplied through the PickleMall 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 PickleMall website, application, or facilities.

X. Indemnity

You agree to release, defend, indemnify, and hold harmless PickleMall 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 PickleMall 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, PICKLEMALL 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 PICKLEMALL 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 PICKLEMALL FACILITIES IS PROVIDED BY A THIRD PARTY, AND THAT PICKLEMALL 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) PICKLEMALL FACILITIES ARE LOCATED IN BUILDINGS WHICH ARE NOT OWNED OR MANAGED BY PICKLEMALL AND PICKLEMALL MAKES NO REPRESENTATIONS OR WARRANTIES RELATING THERETO. ADDITIONALLY, PICKLEMALL MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OF ANY PICKLEMALL SPACE FOR ANY PARTICULAR ACTIVITY NOR ANY ACTIVITIES THAT ARE CARRIED ON IN THE PICKLEMALL SPACES AND SHALL NOT BE LIABLE IN ANYWAY FOR SUCH ACTIVITIES.


WE DO NOT WARRANT THAT THE PICKLEMALL 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 PICKLEMALL 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

PICKLEMALL 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 PICKLEMALL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO PICKLEMALL 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 PICKLEMALL 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 PICKLEMALL’S WEBSITE OR APPLICATION. IN ADDITION, PICKLEMALL DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA ITS WEBSITE OR APPLICATION OR THE EITHER IS ACCURATE, COMPLETE, OR UP TO DATE. TO THE EXTENT APPLICABLE UNDER LOCAL LAW, NOTHING IN THIS AGREEMENT SHALL LIMIT PICKLEMALL’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

PickleMall may send you notices by means of email to your email address on record in PickleMall’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 PickleMall (such notice, complaint or claim shall be deemed given when received by PickleMall) at any time by means of email to support@thepicklemall.com.

XIV. Applicable Law; Jurisdiction and Disputes

These Terms are governed by and construed in accordance with the laws of the State of Texas 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 Travis County, Texas and agree that such courts shall have exclusive jurisdiction over any dispute arising hereunder or relating to PickleMall.


In the event of any dispute or claim arising under this Agreement or related in any way to PickleMall, 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 Austin, Texas. 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 PickleMall, 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. PickleMall 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 PickleMall shall not be liable to you for such action. These remedies are in addition to any other remedies PickleMall 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 PickleMall’s facilities and services, and requesting PickleMall to cancel your Account via email sent to support@thepicklemall.com.

XVI. General

No joint venture, partnership, employment, or agency relationship exists between you and PickleMall as a result of these Terms or use of the Services. These Terms may not be assigned by you (whether in whole or in part) without the prior written approval of PickleMall. These Terms may be assigned without your consent (in whole or in part) by PickleMall, 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 PickleMall 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 PickleMall in writing. These Terms comprise the entire agreement between you and PickleMall 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 PickleMall (“Measures”) to prevent the spread of COVID-19 and to inform PickleMall 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 PickleMall does not make any representations or warranties to the effect that the PickleMall 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 PickleMall, 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 PickleMall facilities or the virus causing COVID-19 and hereby grant to PickleMall a complete, total, and final release and discharge with respect to those claims.

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