The Mirabel Club and Mirabel Community Association (“Mirabel,” “we,” “our” or “us”) thanks you for your interest in our application for mobile devices (the “Application”) and our website, Mirabel.com (the “Site”) as well as all related web-based platforms, web sites, networks, downloadable software, and other services provided by us and on which a link to these terms of service is displayed (collectively, with the Application and the Site, the “Platform”).
2. Material Terms. Without in any way limiting the express language of the Agreement, you agree and acknowledge that this Agreement includes the following material terms:
- License. The Application is licensed, not sold to you, and you may access the Platform and use the services provided through the Platform only as permitted in this Agreement.
- Third-Party Services. Certain services provided through the Platform may be subject to separate third-party terms of service and fees, including, but not limited to, the terms of service and fees imposed by your network operator (“Mobile Carrier”) including fees charged for data usage and overage, which are your sole responsibility.
- Messaging. Messaging in, to, or about the Platform may occur via a variety of electronic communications mechanisms.
- No Warranties. The Platform and services provided through the Platform are provided “as is,” without warranties of any kind, and Mirabel’s liability to you is limited.
- Application Requirements. The Application requires access to the certain services on mobile devices including, but not limited to, UDID, MAC address, or other applicable device identifier, phone state and identity, audio and microphone access and internet and data services.
- IOS Devices. If you use the Application on an iOS-based device, you acknowledge and agree to the “Notice Regarding Apple” set forth below.
- USE OF MOBILE DEVICES WHILE DRIVING. ALWAYS DRIVE DILIGENTLY ACCORDING TO ROAD CONDITIONS AND IN ACCORDANCE WITH TRAFFIC LAWS. BY USING THE MOBILE APPLICATIONS, YOU AGREE TO NOT USE THE SERVICES WHILE DRIVING. MIRABEL SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE WHATSOEVER FOR ANY FINES, VIOLATIONS, AND/OR ACCIDENTS THAT MAY OCCUR FROM ANY USER USING THE APPLICATION WHILE OPERATING A MOVING VEHICLE.
- CLAIMS AND CLASS ACTION PROCEEDINGS. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST MIRABEL ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
3. Eligibility. You must be at least thirteen (13) years of age to access the Platform and use the services provided through the Platform. By agreeing to this Agreement, you represent and warrant to Mirabel: that you are at least thirteen (13) years of age; that you have not previously been suspended or prohibited from accessing the Platform; and that your registration and your use of the Platform and the services provided through the Platform is in compliance with any and all applicable laws and regulations. If you are accessing the Platform or using the services provided through the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to this Agreement, and you agree on behalf of such organization that it shall be bound by this Agreement.
4. Accounts and Registration. To access the services provided through the Platform, you must be a member in good standing of Mirabel Club. When you first register on the Platform, you may be required to provide your club membership number and other information about yourself (such as your name, e-mail address, and other contact information). You agree that all information you provide to Mirabel will be in all material respects accurate and that you will update and maintain such information in a currently accurate state at all times. When you register, you will also be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur in connection with your account. If you believe that your account is no longer secure, you should immediately notify the contact person at the address provided in Section 25.
5. Scope of License. The Application is not sold to you and our right to access and use the Platform is a license granted to you for use only under the terms of this Agreement. Mirabel reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with the terms and conditions of this Agreement, Mirabel hereby grants you a personal, limited, revocable, non-transferable license, solely for your own use, to access the Platform on any compatible device that you own or control solely for your own use. You will not (i) rent, lease, lend, sell, redistribute or sublicense the Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works from the Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or third-party terms), or attempt to disable or circumvent any security or other technological measure designed to protect the Platform or any content available through the Platform. If you breach these license restrictions or otherwise exceed the scope of any license granted by this Agreement, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights.
6. Third-Party Services and Linked Websites. Mirabel may provide features on the Platform that enable you to export information to third-party services, including features that allow you to link your Mirabel account with an account with a third-party service, such as Twitter or Facebook, or through the implementation of third-party buttons (such as “like” or “share” buttons). By using any of these features, you agree that Mirabel may transfer that information to the applicable third-party service. Third-party services are not under our control, and we shall have no obligation or responsibility of any kind or nature whatsoever for any third-party service’s use of your exported information. The Platform may also feature links to other third-party websites such as PGA.com. Linked websites are not under our control, and we shall have no obligation or responsibility of any kind or nature whatsoever for the content of any linked websites.
7. Content You Submit. The Platform includes features that allow you to upload certain materials to Mirabel’s servers, to facilitate certain processing of those materials by Mirabel, and to share those materials with your contacts and other users of the Platform. The following provisions apply to your use of such features to manage and share media content across the Platform. You agree that you shall be solely responsible for and assume all liability and consequences for all text, audio, messages, photos, images, and all other media content that you submit through the Platform along with all associated metadata (which may include, but not be limited to, your device type, date, time, application, and location data associated with the creation and/or submission of the particular content (collectively, the “User Content”). For clarification purposes, User Content shall not include data submitted to the Application that is used to enable features of the Application not designed specifically as User Content.
- Ownership of User Content. You retain ownership of all of your rights in your User Content, and we shall not acquire any ownership of rights in your User Content. However, in order for us to provide certain services through the Platform, Mirabel needs certain permissions from you. Accordingly, you hereby grant Mirabel a worldwide, non-exclusive, royalty-free, sub licensable, and transferable license, without obligation, to use, reproduce, distribute, publish, display, perform, transmit, stream, broadcast, modify, and otherwise utilize your User Content and modifications and derivatives thereof (including without limitation the right to include, append, integrate, embed, or incorporate advertising and to format or otherwise adapt your User Content as we, in our sole and absolute discretion, deem necessary or useful to conform to the requirements, limitations, or capabilities of the various formats, networks, devices, services, and media where your User Content may be implemented in connection with providing services to our users). You agree that we not obligated to publish any User Content, shall have the right to remove any User Content from the Platform at any time and for any reason, and are not obligated to pay or share any revenue or compensation with you in connection with your User Content, any associated advertising, or otherwise.
- License. By posting and sharing User Content with another user of the Platform, you grant that user a non-exclusive license to access and use that User Content as permitted by this Agreement and the functionality of the Platform.
- Representations and Warranties. You represent, warrant, and covenant that (i) you either are the sole and exclusive owner of all User Content that you submit to the Platform or have all rights, licenses, consents, and releases that are necessary and appropriate to grant us the rights in such User Content as contemplated under this Agreement, and (ii) neither the User Content you submit to the Platform nor your creation of, accessing, posting, submission, or transmission of such User Content or our exercise of the rights granted to such User Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including without limitation restrictions on obscenity, child pornography, wiretap laws, or other similar restrictions on nonconsensual recording, or otherwise), or give rise to any right of payment of any amounts to any third party.
- Objectionable User Content. You agree not to submit User Content that: (i) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promotes discrimination, bigotry, racism, or hatred, or is inappropriate for the type of form or field on the Platform for which you are providing User Content, as determined by Mirabel in its sole discretion; or (ii) introduces viruses, time-bombs, worms, cancelbots, Trojans, and/or other harmful code.
8. Open Source and Third-Party Software. The Platform may include open source software or third-party software. Any such software is made available to you under the terms of the applicable licenses.
9. Digital Millennium Copyright Act.
- DMCA Notification. Mirabel respects the intellectual property rights of others and acts in accordance with its interpretation of the Digital Millennium Copyright Act, 17 U.S.C. § 512, as amended ("DMCA"). If you have an intellectual property rights-related complaint about material posted on the Platform, you may contact Mirabel’s Designated Copyright Agent at the following address: Brian Hallberg [email protected] 18701 North Mirabel Drive Scottsdale, Arizona 85255 (480) 515-3200
- Notice of Infringement. Any notice alleging that materials hosted by or distributed through the Platform infringe intellectual property rights must include the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right that allegedly has been infringed; (ii) a description of the copyright-protected work or other intellectual property right that allegedly has been infringed; (iii) a description of the material you claim is infringing and where it is located on the Platform; (iv) the address, telephone number, and email address of the party alleging the infringement; (v) a statement by the party alleging the infringement that such party has a good faith belief that the use of those materials on the Platform is not authorized by the copyright owner, its agent, or the law; (vi) a statement by the party alleging the infringement that the information contained in the notice is accurate and that, under penalty of perjury, such party is the copyright or intellectual property owner or is authorized to act on the copyright or intellectual property owner's behalf.
- Repeat Infringers. Mirabel may promptly terminate without notice the accounts of users that Mirabel, in its sole and absolute discretion, determines to be “Repeat Infringers.” A repeat infringer is a user who has been notified of infringing activity or has had User Content removed from the Platform on more than one occasion.
10. Third-Party Materials and Linking to Third-Party Sites. Certain portions of the Platform may include, display, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials”). You acknowledge that by using the Platform, you may encounter Third-Party Materials and other content, such as third-party advertisements and promotional content (collectively, “Content”). Nevertheless, you agree to use the Platform at your sole risk, and Mirabel shall not have any liability to you for any Content that is found to be offensive or objectionable or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality, or otherwise. The Platform may provide links to third-party sites. Your use of and access to such sites is completely voluntary and not required to access the Services or use the Platform. The linked sites are not under our control, and we shall have no responsibility for the content of any linked site or subsequent links from that site to other sites or for the security of any of your personal information that may be compromised by accessing such sites. We may provide such links as a courtesy to our users, but such links shall not under any circumstances constitute Mirabel’s endorsement of any linked site.
11. Use of the Platform. Your rights to use the Platform are expressly conditioned on the following:
- Proprietary Information. You agree and understand that the Platform, including any Content therein, contains proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you shall not violate or encourage others to violate any right of a third party, including infringement or misappropriation of any third-party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information, or materials.
- Derivative and Other Works. Unless expressly permitted, you shall not alter, modify, create derivative works of, sell, license, or in any way exploit any part of the Platform, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream, or broadcast any part of the Platform without the prior written authorization of Mirabel.
- Bypass of Security. You shall not bypass any security or other features of the Platform designed to control the manner in which the Platform is used, harvest or mine content from the Platform, or otherwise access or use the Platform in a manner inconsistent with individual human usage.
- Extraction of Data. You shall not to use any robot, spambot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Platform or to extract data.
- Fraudulent Activity. You shall not perform any fraudulent activity, including impersonating any person or entity or accessing any other Platform account without permission.
- Reverse Engineering. You shall not decipher, reverse engineer, decompile, or disassemble the Platform, the Content, or the software used to provide the Platform or the Content, in whole or in part, or authorize, direct, or cause a third party to do so.
- Framing. You shall not use, display, mirror, frame, or utilize framing techniques to enclose the Platform or any content, or any portion thereof, unless and solely to the extent Mirabel makes available the means for embedding any part of the Platform or any content.
- Non-Public Areas. You shall not access, tamper with, or use non-public areas of the Platform, Mirabel’s (and our hosting company’s) computer systems and infrastructure, or the technical delivery systems of our providers.
- Harassing Conduct. You shall not use the Platform in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party, and Mirabel will not in any way be responsible for either any such use by you or any harassing, threatening, defamatory, offensive, or illegal messages or transmissions that you may receive as a result of using the Platform.
- Driving. You shall (i) not use the Platform while driving and (ii) only use the Platform after you have stopped your vehicle in an appropriate location permitted by law or have a passenger other than the driver use the Platform, provided it does not interfere with the due course of driving and does not distract the driver.
- Third-Party Fees. You acknowledge and agree that your use of the Application may incur third-party fees, such as fees charged by your Mobile Carrier for data usage, and may be subject to third party terms, such as your Mobile Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms.
- Competition. You shall not use the Platform for the purpose of competing with Mirabel with respect to the services offered through the Platform or otherwise. You agree any attempt by you to compete with Mirabel shall create irreparable harm to Mirabel.
- Violation. You shall not do any of the acts described in this Section 11 or assist or permit any person to engage in any of the acts described in this Section 11. Any violation of this Section 11 may result in suspension of your account, and Mirabel may seek other relief in law or in equity for such violation.
12. Location Based Services. Some of the features of the Platform enable Mirabel to tailor your experience based on your location (“Location-based Services”) including, but not limited to, offers, event updates, advertisements, and other announcements available to you based on your location. In order to use certain Location-based Services, you must allow Mirabel access to your localized position (“Location Data”) through your device, which Mirabel may accomplish through a variety of means, including GPS location, GeoIP, or other available mechanisms. Without limiting the foregoing, even if you have not expressly granted Mirabel access to your Location Data, Mirabel may nonetheless have access to location information contained in media content metadata, to the extent you have enabled the application originating such media content to capture and store Location Data. If you choose to disable Location-based Services on your device or to the Application, you will not be able to utilize certain features of the Platform. By authorizing Mirabel to access your Location Data or media files containing location-based metadata, you agree and acknowledge that (i) Location Data we collect from you is directly relevant to your use of the Platform; (ii) Mirabel may, for so long as you allow Mirabel to access such Location Data or metadata, provide Location-based Services related to your then-current location; and (iii) Mirabel may collect, use, store, and/or aggregate your Location Data. PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE, WHETHER COLLECTED ORIGINALLY BY THE APPLICATION OR A THIRD-PARTY APPLICATION ORIGINATING A PIECE OF MEDIA CONTENT, AND MIRABEL DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION DATA AND LOCATION-BASED SERVICES. Mirabel may use third-party services as part of its Location-based-Services, including but not limited to Google maps. By using our applications, you agree to be bound to the terms of such Location-based-Services. For Google such terms can be found here: https://policies.google.com/term?hl=en.
14. Feedback. While Mirabel is continually working to develop and evaluate our own ideas, events, and features to serve our members, we appreciate the ideas, interests, feedback, comments, and suggestions we receive from our user members. If you choose to contribute by sending us or our employees any ideas for services, features, modifications, enhancements, refinements, technologies, content offerings, promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply so that future misunderstandings can be avoided. Accordingly, by sending us Feedback, you agree that:
- No Obligation. Mirabel is not obligated to review, consider, or implement your Feedback or to return to you all or part of any Feedback for any reason.
- Confidentiality. Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using it in any way;
- c. License. You irrevocably grant us and our successors and assigns a perpetual and unlimited license to use, reproduce, modify, distribute, display, and perform the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody the Feedback whether in whole or in part and whether as provided or as modified.
15. Ownership. The Platform and all content, media, and materials contained therein, including all intellectual property rights therein, are the sole and exclusive property of Mirabel and its licensors, provided that your User Content and your intellectual property rights therein remain your property. Except for the limited license expressly granted to you under this Agreement, no other rights, licenses, or immunities are granted or shall be deemed to be granted under this Agreement, either expressly or by implication, estoppel or, otherwise. All rights not expressly granted by Mirabel in this Agreement are expressly reserved.
16. Termination. This Agreement shall remain effective until terminated by you or Mirabel. Your rights under this Agreement and the revocable license granted herein will terminate automatically without notice from Mirabel if you fail to comply with any term(s) of this Agreement (including violation of any license restriction provided herein). Mirabel also reserves the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform) without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate this Agreement at any time by uninstalling the Application and ceasing use of the Platform. Upon any termination of the Agreement, you must immediately cease all access to the Platform and the use of any services provided through the Platform and destroy all copies, full or partial, of the Application.
17. Indemnification. You will indemnify, defend, and hold Mirabel and its members, officers, directors, employees, agents, contractors, attorneys, representatives, successors and assigns (each, an “Indemnified Party” and collectively the “Indemnified Parties”) harmless from and against any and all claims, damages, losses, costs, liabilities, or expenses including, without limitation, attorneys’ and experts’ fees and costs incurred in connection with any judicial or non-judicial third-party claim, demand or action (each, a “Claim”): (a) arising out of or allegedly arising out of (i) your use of the Platform (ii) your breach of this Agreement, (iii) material submitted to us for use in providing the Services including, but not limited to, any claim that the use of your material infringes upon or violates any Intellectual Property Right of any third party or is inaccurate or misleading in any respect, (iv) your negligence or willful misconduct, or (v) your violation of or failure to comply with any applicable law, regulation, or government agency guideline, including without limitation any federal or state privacy or consumer protection laws, a demand for compensation or benefits, or pursuit of any employment-related Claim by any of your employees or contractors. Mirabel may, but shall not be obligated to, participate in the defense of any Claim, and you will not settle any Claim against an Indemnified Party without our prior written consent. In the event of a Claim against an Indemnified Party, we may terminate this Agreement, any registration, account, or Subscription without any liability of any kind or nature whatsoever. All Claims and disputes arising under or relating to this Agreement are to be determined by binding arbitration in the State of Arizona in accordance with the rules of the American Arbitration Association. Any arbitration award may be confirmed by an Arizona court of competent jurisdiction.
18. LIMITATIONS ON LIABILITY TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER MIRABEL NOR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, AND/OR AGENTS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES RESULTING FROM: (I) ERRORS, MISTAKES, OR INACCURACIES OF OR IN ANY INFORMATION ON THE PLATFORM; (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO YOUR USE OF THE SERVICES; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION OF THE SERVICES; AND/OR (IV) EVENTS BEYOND MIRABEL’S REASONABLE CONTROL, INCLUDING ANY INTERNET FAILURES, EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EARTHQUAKES, EXPLOSIONS, ACTS OF GOD, WAR, TERRORISM, GOVERNMENTAL ACTIONS, ORDERS OF COURTS, AGENCIES OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING