Effective Date: October 7, 2024
PLEASE CAREFULLY READ THIS AGREEMENT. BY USING VIVIDPICKS.COM OR THE VIVID PICKS MOBILE APPLICATION (“VIVID PICKS,” “WE,” “US,” OR “OUR”), OR BY PURCHASING ANY PRODUCT OR SERVICE FROM,ON, OR THROUGH VIVID PICKS, OR BY INDICATING YOUR ASSENT TO THESE TERMS OF USE(“TERMS”), YOU ARE CONSENTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND AGREE TO COMPLY WITH THEM. DO NOT ACCESS OR USE OUR SERVICES OR PURCHASE ANY PRODUCT FROM, ON, OR THROUGH OUR SITE OR MOBILE APPLICATION IF YOU DO NOT AGREE TO THESE TERMS.
THESE TERMS CONTAIN A CLASS WAIVER AS WELL AS A MANDATORY ARBITRATION AND DISPUTE RESOLUTION PROVISION THAT MAY IMPACT YOUR LEGAL RIGHTS IN THE EVENT OF A DISPUTE. SPECIFICALLY, PLEASE REFER TO THE PROVISIONS REGARDING ARBITRATION BELOW, WHICH REQUIRE YOU AND VIVID PICKS TO RESOLVE DISPUTES (WITH CERTAIN EXCEPTIONS) BY BINDING AND EXCLUSIVE ARBITRATION ON AN INDIVIDUAL BASIS INSTEAD OF IN COURT OR BEFORE AJURY, UNLESS YOU CHOOSE TO TIMELY OPT OUT. IN ARBITRATION, A CLASS, OR IN A CLASS ACTION OF ANY KIND. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND THAT YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE, OR CONSOLIDATED ACTION OR PROCEEDING WILL NOT BE PERMITTED, AS SET FORTH CAPACITY IN ANY FORUM, AS DESCRIBED IN MORE DETAIL BELOW. YOU HAVE A RIGHT TO OPT OUT OF ARBITRATION AND/OR THE CLASS ACTION, CLASS ARBITRATION, AND COLLECTIVE RELIEF WAIVER, AS EXPLAINED BELOW.
If you access or use vividpicks.com or its mobile application, or purchase any product or service from, on, or through Vivid Picks on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to these Terms and that the Terms are fully binding on them. In such case, the term “you,” as used in these Terms, will refer to such entity and its affiliates. If you do not have authority, you may not access or use vividpicks.com or our mobile application, or purchase any product from, on, or through Vivid Picks.Be advised that these Terms contain disclaimers of warranties and limitations on liability that may be applicable to you.
1. Acceptance of Terms
Vivid Picks provides a fantasy sports mobile application and a website located at vividpicks.com(collectively, the “App”) which includes all of the text, images, audio, code and other material it contains or provides (collectively, the “Content”) and all of the features, contests and other services it provides. Please read theseTerms of Use (the “Terms”) carefully before using the App. The use of the App is subject to all applicable State and U.S. Federal regulations. We reserve the right to revise these Terms, or any part thereof, at any time and in our sole discretion. By opening an account on the App, you agree to be bound by these Terms as they may be amended from time to time. Your access to the App and play of any game on the App constitutes your acceptance of the Terms as they exist as of the date of such access or play. You are responsible for periodically reviewing the Terms as posted on the App. Your acceptance of theTerms constitutes a legally binding agreement and will govern your use of theApp. Vivid Picks may issue additional terms, rules and conditions ofparticipation in particular contests. For example, Vivid Picks may issue conditions as required by various State rules and regulations, which may impactyour experience or participation on the App. You agree to be subject to those additional rules if you participate in such contests.
2. Eligibility
You hereby represent and warrant that you are fully able and competent to enter into and comply with theseTerms. In order to open a user account or to access and use any of the services provided by the App, you must be at least eighteen (18) years of age. If you are a legal resident of any jurisdiction where the minimum age for the permissible use of the App is greater than eighteen (18) years of age, then you must meet the age requirement in such jurisdiction. Additionally, residents outside of the United States, regardless of their age, may not use the App. By using the App, you represent and warrant that you are not physically located in any of the following States: Connecticut, Hawaii, Idaho, Louisiana, Montana,Michigan, Nevada, or New York, or any other state in which the usage of the App is prohibited by law.
Vivid Picks and Vivid Seats LLC(“Vivid Seats”) employees (collectively, “Employees”), and any domestic partner or relative of the employee who resides at an employee’s residence, including but not limited to parents, grandparents, in-laws, children, siblings, and spouses (“Immediate Family Members”), are not permitted to play in any VividPicks public contests for cash.
Professional or amateur athletes, sports agents, coaches, team owners, team employees, referees or league officials, and their immediate family members, are not eligible to participate in, and are strictly prohibited from entering, any Vivid Picks contests in the sport in which they are associated.
3. Opening an Account andAccount Information
In consideration of our acceptance of your application to establish an account, you represent (and acknowledge that we may rely upon these representations) as follows:
You agree to hold us harmless against any falsehood or inaccuracy contained in the information you provide us. In order to use the App, you must register for an account. By registering as an App user, you agree to provide accurate, current, and complete information about yourself as prompted and you will maintain and promptly update your registration data to keep it accurate, current and complete. If you provide any information that is inaccurate, not current or incomplete, orVivid Picks has reason to suspect that such information is inaccurate, not current or incomplete, Vivid Picks may terminate your account, at its sole discretion. By establishing an account, you hereby consent to Vivid Picks using third-party services to verify your account information, including, but not limited to, confirming your age, location, and identity. Only one account per person is allowed. Your Vivid Picks account is unique to you and non-transferrable. Vivid Picks reserves the right to reject any application for an account for any reason it deems necessary.
You are responsible for maintaining the confidentiality of your account information, including, but not limited to, your login name, password, and banking and payment information, and you accept responsibility for all activities, charges, and damages that occur under your account. It shall be a violation of these Terms to allow any other person to use your account to participate in any contest. If you have reason to believe that someone is using your account without your permission, you should contact us immediately. We will not be responsible for any loss or damage resulting from your failure to notify us of unauthorized use. If we request registration information from you, you must provide us with accurate and complete information and must update the information when it changes. We may require you to change your login name or we may unilaterally change your login name, at our sole discretion, without notice to you.
4. Anti-Money LaunderingPolicies
Vivid Picks is committed to combating money laundering and any activity that facilitates money laundering or the funding of terrorist or criminal activities by complying with all applicable requirements under the Bank Secrecy Act (BSA) and its implementingregulations. Vivid Picks may require you to provide proof that you are eligible to participate prior to receiving a prize. This includes by requesting that you fill out an affidavit of eligibility or other verification information. If Vivid Picks determines that you do not meet its eligibility requirements, in addition to any rights that Vivid Picks may have in law or equity, Vivid Picks reserves the right to terminate your account, withhold or revoke the awarding of any prizes associated with your account or limit your ability to withdraw. In such a situation, Vivid Picks may pay out any withheld or revoked prizes to the other entrants in the relevant contest in a manner consistent with the prize structure of the contest, to be precisely determined by Vivid Picks in its sole discretion. Employees and Immediate Family members are not eligible to participate in paid contests. Vivid Picks consultants or promoters of the App may play in contests without such limitation, but only if:(i) their arrangement with Vivid Picks does not permit them to have any access to non-public App data or any other data not made available to all players on the App and (ii) they do not have or receive any other advantages in their play on the App. Employees or operators of other daily fantasy sites or apps that charge entry fees or offer cash prizes, including but not limited toDraftKings, FanDuel or Yahoo, and individuals who, by virtue of affiliation with another daily fantasy site, have access to the site/app’s pre-release non-public confidential data about game-related information may not enter any contests in which a real money prize is awarded. If such person enters a VividPicks contest that awards prizes, Vivid Picks will disqualify the entry, will not award a prize, and may report such person’s violation of this provision to the daily fantasy site for which the entrant is employed by, operates or is affiliated with. Additionally, Vivid Picks may maintain information about the entrant sufficient to assist Vivid Picks in blocking the user from entering future Vivid Picks contests, unless and until Vivid Picks determines, in its sole discretion, that the entrant is no longer a prohibited user. You agree that the specific and sole purpose of creating an account on Vivid Picks’s App is to participate in fantasy sports contests on the App. Vivid Picks shall been titled to suspend, limit or terminate your account if we determine, in our sole discretion, that you are depositing funds without the intention of using them in contests on the App. In such circumstances, we may also report such activity to relevant authorities. By depositing funds or entering paid contests, you agree to provide us with a valid mailing address, date of birth and any other information we may require in order to run appropriate identity checks and comply with applicable rules and regulations. If necessary, you maybe required to provide appropriate documentation that allows us to verify you. While your account is pending verification, you may be able to deposit funds in your account and participate in contests, but you will not be able to withdraw any funds from your account until verification is complete. Deposits, and player winnings after contests are finished, are held in a separate, segregated bank account at a third-party financial institution. These funds belong to you, subject to review for evidence of fraud, verification or other prohibited conduct as described above, and Vivid Picks may not use them to cover its operating expenses or for other purposes. Vivid Picks may limit the amount a user can deposit into his or her account in accordance with state-imposed deposit limits or other limits Vivid Picks may deem necessary inits sole discretion. In cases where you have participated in a promotion to receive a bonus or other benefit, you may be required to play through your deposit (by entering contests) whose total entry fees equal the value of the deposit to receive the entirety of such bonus.
5. Consent to Contact
By signing up for an account, you hereby consent to receive communications from us via e-mail, telephone or mail, regarding matters related to your account, the App, and any offerings, promotional or otherwise, from us, our affiliates or our marketing partners. You have a right to limit the circumstances under which we may contact you by changing your preferences on the App. From time to time, Vivid Picks may provide you with access to various information and content via the App, emails or through other means of communication.
6. Third-Party Websites andSyncing
By signing up for an account, you further consent to receiving links to third-party websites which may include information. This information is supplied “as is” and for informational purposes only. Use of such information is entirely at your own risk. To the fullest extent permitted by law, neither Vivid Picks nor any other party makes any representations or warranties of any kind, including but not limited to, the accuracy, quality or completeness of the information. Neither Vivid Picks nor any other party shall be liable for any action taken by you as a result of your reliance on any of this information or for any loss or damage suffered by you as a result of your use of such information or any third-party website linked to Vivid Picks. Any links to third-party websites do not constitute an endorsement by Vivid Picks or any other party of any products or services available on such websites. You use such websites at your own risk and neitherVivid Picks nor any other party takes any responsibility for the content on, or use of, such websites. Similarly, if you elect to sync your Vivid Picks account with any third-party service, you agree that such syncing is at your own risk, and Vivid Picks shall not be liable for any loss or damage suffered by you as a result of your use of such third-party service.
7. Account Security
You will not attempt to sell or otherwise transfer your account to any third party and nor will you acquire or attempt to acquire an account which has been opened in the name of a third party.
8. Errors and OmissionsRelated to Your Account
You will inform us as soon as you become aware of any errors with respect to your account and you will forfeit any amounts shown to be in your account that result from human error or technical fault on the part of Vivid Picks and their respective vendors and suppliers.
9. Suspension or Termination of Your Account
Either we or you may suspend or terminate your account at any time, either with or without cause, upon notice(we will use our reasonable efforts to give such notice to you either before or after suspending or terminating your account). You agree that upon any such suspension or termination, your entries for any contests that have not yet graded will be cancelled. You understand that you are not permitted to use the App, and may be blocked from using the App, if you are physically located outside of the boundaries of a jurisdiction where participation in the App’s services is legal. In addition, if formally requested by law enforcement, regulators or other authorities, or in the event that you fail to provide us with sufficient information to identify yourself in accordance with our own internal procedures or those imposed on us by any regulator, we may suspend your account and all functionality relating to the use of your account pending the final determination of any criminal or other legal proceeding or investigation to which such a request may relate or until we determine, at our sole discretion, that you have provided valid “know your client” or “age verification”information, as appropriate.
10. Game of Skill
Vivid Picks is a game of skill. Winners are determined by the criteria set forth in each contest’s rules. Foreach contest, winners are determined by individuals who use their skill and knowledge of relevant professional sports information and fantasy sports to accumulate the most fantasy points. Fantasy points are accumulated through the performance by individual athletes in sports events.
11. Tax Liability
Certain winnings may be subject to income taxation. Please note that any obligation to pay applicable taxes on winnings is your responsibility as a Daily Fantasy Sports consumer. Failure to pay applicable tax liabilities may result in civil penalties or criminal liability.
12. License to Use the App
The App may not be used for any form of illegal gambling. Vivid Picks grants you a limited license to access the App and to play the games and contests, provided that you comply with theseTerms. The availability of the App does not constitute an offer or invitation by Vivid Picks for you to use the App in any jurisdiction in which such use is illegal. You understand that we may block you from using the App if you are physically located in a jurisdiction where such use is illegal. Your use of the App confers no rights whatsoever to the Content, Software or to any relatedIntellectual Property Rights contained on the App. You agree not to monitor, use or copy any of our App Content. You will not attempt to hack, make unauthorized alternations or introduce any kind of malicious code to the App by any means.
13. License to Use theSoftware
The software used to operate theApp (the “Software”) is owned by Vivid Picks and will remain the property ofVivid Picks. You will only use the Software to use the App in accordance with these Terms. If you become aware that the Software is being used in any manner not authorized by these Terms, you will immediately notify Vivid Picks. You will not: (i) reverse engineer or decompile (whether in whole or in part) theSoftware or (ii) make copies, modify, reproduce, transmit, alter or distribute the Software or all or any part of the App or any material or information contained on it. Any unauthorized use or reproduction may be legally actionable. You agree that you will not use the Software:
Vivid Picks, or their vendors, may issue upgraded versions of the Software from time to time and will make such upgraded versions available to you. All such upgrades shall be deemed to be Software for the purposes of these Terms.
14. Your Representations
In consideration for us allowing you to use the App, by opening and using an account on the App, you represent(and acknowledge that we will rely upon these representations) as follows:
15. Cancellation, Termination,Suspension and Breach
We may restrict your access to the App, prohibit you from participating in any and/or all of the contests and/or prohibit players from playing in a particular contest (including restricting two or more players from playing together in the same contest), suspend or terminate your account in our absolute discretion without cause at any time including, without limitation, if:
16. Changes to the Contests;Scoring Errors; Contest Rules
Fantasy points are calculated using the results at the time when Vivid Picks tabulates final scoring. VividPicks may, in its absolute discretion, alter, amend, cancel, or withdraw any particular contest or any part thereof, and may add other contests at any time, and may alter prices, features, specifications, capabilities, functions and/or other characteristics of the contests at any time. In the event of a cancellation, all entry fees will be refunded. Vivid Picks also reserves the right to adjust fantasy point calculations and scoring if it, in its sole discretion, believes errors or irregularities are present, either in the calculation of results, any palpable error in the creation of a contest or any projection, issues with transmission of information to Vivid Picks, or mistakes or errors in the statistical results provided to Vivid Picks that do not reflect actual on-field results. Vivid Picks, however, will not change results once winners are announced solely in light of official adjustments made by theNFL, NBA, MLB, NHL, or PGA more than 30 minutes after the official conclusion of the sporting event. Vivid Picks reserves the right to reverse payment in the event of any adjustment, and may, but is not required to, to delay awarding of prizes if it anticipates adjustments may occur. You agree to cooperate with efforts to reverse payments.
17. Bonuses and Promotions
Bonuses may be offered to newly depositing users and for other marketing purposes. Certain bonuses are awarded as a “pending bonus” earned gradually when users enter and complete paid contests. Any bonus a new user receives is for entry into Vivid Picks contests and can only be withdrawn if the user has previously entered into at least one contest. In the event of abuse of the bonus system by any user, Vivid Picks reserves the right to retract user bonuses. Vivid Picks may also offer credits in contests where users correctly select portions of any entry, and for referring new users to Vivid Picks, or other purposes at Vivid Picks’s sole discretion. Vivid Picks reserves the right, in its sole discretion, to reclaim these bonuses and credits if players do not use them to enter real money contests within 30 days of their initial award and crediting, or within the minimum amount of time allowed by applicable law. These bonuses and creditscan be used to enter real money contests, but cannot be withdrawn as cashunless and until they are used in a real money contest that results in playerwinnings.
18. Errors and OmissionsRelated to Results
If there is any discrepancy between the contest results on your mobile device and the results on our server, the results on our server shall be final and binding. If there is any discrepancy between your on-screen display and the balance in your account, the balance held on Vivid Picks’s server is deemed to be the balance in your account and this determination shall be final and binding. You will forfeit any amounts shown to be in your account that result from human error or technical default. Vivid Picks and its respective licensors, vendors and suppliers and the respective licensees, distributors, parents, subsidiaries, affiliates of each and all of their officers and directors and employees that will not be liable for any loss or damages which may be caused by the interception or misuse of any information transmitted over the Internet.
19. Inactive Accounts
Your account may be deemed dormant or abandoned if it remains inactive for the amount of time specified by applicable state law (usually thirty-six (36)months or longer). Vivid Picks will treat any remaining funds held in a dormant or abandoned account in accordance with applicable state laws and regulations, which may require Vivid Picks to remit the abandoned funds to the state as unclaimed property.
20. Intellectual Property
Vivid Picks is the owner or licensee of: (i) all copyright and related rights in and to our App, including, without limitation, rights in databases; (ii) all trademark rights, whether registered or unregistered, in and to Vivid Picks and the Vivid Picks logo; and(iii) patents owned by Vivid Picks (collectively, “Vivid Picks Property”). You acknowledge that you do not acquire any ownership rights by using our App. You may not use any Vivid Picks Property in connection with any product or service that is not offered by Vivid Picks, in any manner that is likely to cause confusion with Vivid Picks’s business or in any manner that disparages VividPicks. Nothing contained on the App or website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Vivid Picks Property without the express written permission of Vivid Picks. Any unauthorized use of these rights may result in legal action being taken against you.
The content, organization, graphics, design, compilation, "look and feel" and all Vivid PicksProperty available on the App, including, without limitation, images and written and other materials (the "Materials"), are intellectual property protected under the copyright, trademark and other intellectual property laws of the United States and/or other countries ("Intellectual PropertyLaws"). You may not download, print, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise use or exploit any of the Materials except in the course of using the App or for lawful purposes. You also agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on any Materials. The violation of applicableIntellectual Property Laws may give rise to civil and/or criminal penalties. No right, title or interest in any downloaded Materials is transferred to you as a result of any such downloading or copying other than the foregoing license to possess for personal use in connection with the App.
21. User Content
You hereby assign to Vivid Picks any and all copyright and other Intellectual Property Rights throughout the world in all media whether now known or hereafter developed, for the maximum duration permitted by applicable law, including by way or present assignment or future copyright and all other rights whatsoever, in any game play, feedback or any other interaction made by you while participating in the contests or using the App. Any data, text, graphics, photographs or any other content, and their selection and arrangement, uploaded to the App by any user (“User Content”) are subject, whether in whole or in part, to unlimited worldwide commercial, non-commercial and/or promotional use by Vivid Picks. Any text, graphics, photographs, files or other User Content uploaded by you shall be your sole responsibility and you hereby agree that you may be held liable for any UserContent that you upload. Vivid Picks shall not bear any responsibility for any of the above mentioned User Content. Vivid Picks reserves the right (but shall at no time be obligated) to, in its sole discretion, remove, block, edit, move, disable or permanently delete User Content from the App with or without notice for any reason whatsoever. You hereby agree that, to the maximum extent permitted by applicable law, Vivid Picks shall at no time be responsible or held liable for the removal, modification or blocking of material or User Content that maybe considered offensive and shall at no time be obligated to effect such removal other than as required under applicable law.
22. Indemnity
You agree to indemnify, defend and hold harmless Vivid Picks, its parents, affiliates, investors, licensors, suppliers, advertisers and sponsors, and their respective employees, consultants, agents and other representatives (“Indemnified Parties”) from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from: (i) your breach of any of these Terms; (ii) any allegation that any information you submit or transmit to the App, or Software infringes or otherwise violates the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (iii) any federal, state, or county tax obligation or amounts due or owing under any tax regulation, law, order or decree or any dispute concerning the tax status of Vivid Picks; and/or(iv) your activities in connection with your use of this App.
23. Representations and Warranties
You represent and warrant toVivid Picks that: (a) You have the legal right and authority to enter into theTerms; (b) the Terms form a binding legal obligation on Your behalf; and (c)You have the legal right and authority to perform Your obligations under theTerms.
24. Disclaimers
THE APP, THE MATERIALS ON THE APPAND ANY TICKET OR SERVICE OBTAINED ON OR THROUGH THE APP, SOFTWARE AND CONTESTS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. VIVID PICKS DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THEAPP, THE MATERIALS ON THE APP AND ANY TICKET OR SERVICE OBTAINED ON OR THROUGH THE APP, AND SOFTWARE AND CONTESTS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR USAGE OF TRADE. VIVID PICKS DOES NOT WARRANT THAT YOUR USE OF THE APP, AND SOFTWARE AND CONTESTS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APP, AND SOFTWARE ARE FREEOF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE APP, AND SOFTWARE AND CONTESTS AND YOUR RELIANCE THEREON. VIVID PICKS IS NOT RESPONSIBLE IN ANY WAY FOR THE ACCURACY OR SUITABILITY OFANY PAYMENT OF TAXES TO ANY ENTITY ON YOUR BEHALF. YOUR USE OF THE APP,SOFTWARE AND CONTESTS AND ANY MATERIALS PROVIDED THROUGH THE APP, AND SOFTWARE AND CONTESTS ARE ENTIRELY AT YOUR OWN RISK. YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SITE OR VIVID PICKS’ MOBILE APPLICATION, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES,AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUTOF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
IF YOU ARE A CALIFORNIA RESIDENT,YOU WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH STATES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
APPLICABLE LAW IN SOME JURISDICTIONS, SUCH AS THE STATE OF NEW JERSEY, DOES NOT ALLOW THE WAIVER OF IMPLIED WARRANTIES AS SET FORTH IN THIS SECTION, SO SOME OR ALL OF THIS PROVISION MAY NOT APPLY TO YOU.
25. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER VIVID PICKS NOR ANY OTHER INDEMNIFIED PARTY ARE OR WILL BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OFANY TYPE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR LOST PROFITS) AS WELL FOR ANY MULTIPLIER ON OR INCREASE TO DAMAGES OR FOR ANY COSTS OR FEES (INCLUDING ATTORNEYS’ FEES), HOWEVER CAUSED, UNDER ANY CONTRACT, TORT,NEGLIGENCE, STRICT LIABILITY, STATUTORY, COMMON LAW, EQUITABLE, OR OTHER THEORY(INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSSOF USE OR LOST PROFITS, LOSS OF OTHER INTANGIBLES, OR LOSS OF SECURITY OF SUBMISSIONS) ARISING OUT OF OR RELATING IN ANY WAY TO THE APP, THE MATERIALS ONTHE APP OR ANY TICKET OR SERVICE OBTAINED FROM, ON, OR THROUGH THE APP, THE SOFTWARE OR THE CONTESTS. WITHOUT LIMITING THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT VIVID PICKS AND ANY OTHER INDEMNIFIED PARTY SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR: (I) ANY ACTION OF ANOTHER USER ON THE APP; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER ARISING IN CONTRACT OR IN TORT, RESULTING FROM YOUR ACCESS TO OR USE OF THE APP OR SOFTWARE, INCLUDING ANY CLAIM, CAUSE OF ACTION,OBLIGATION, LIABILITY, RIGHT OR REMEDY WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF VIVID PICKS; (III) ANY UNAUTHORIZED ACCESS; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APP; (IV) ANY BUGS, VIRUSES, WORMS,DEFECTS OR OTHER ITEMS OF A DESTRUCTIVE NATURE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APP OR SOFTWARE BY ANY THIRD PARTY; AND/OR (V) ANY ERROR, MISTAKE,INACCURACY OR OMISSION IN ANY CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT AVAILABLE THROUGH THE APP. YOU AGREE THAT VIVID PICKS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY OTHER LIMITATION OF LIABILITY INTHIS SECTION IS NOT PERMITTED, VIVID PICKS’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THE MAXIMUM CUMULATIVE LIABILITY OF VIVID PICKS, AND ANY OTHER INDEMNIFIED PARTY, AND YOUR SOLE AND EXCLUSIVE REMEDY, FOR ALL DAMAGES, LOSSES SUFFERED BY YOU AND CAUSES OF ACTION,WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (A) THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE APP OVER THE PAST TWELVE (12) MONTHS; OR (B) $200.
YOU ACKNOWLEDGE AND AGREE THAT NEITHER VIVID PICKS NOR ANY OF THE INDEMNIFIED PARTIES ARE LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD VIVID PICKS OR THE INDEMNIFIED PARTIES LIABLE, FORTHE CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
SOME NOT ALLOW CERTAIN AGREEMENTS TO INCLUDE THE PROVISIONS OF THIS SECTION THAT (I) LIMIT OR EXCLUDE CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY TYPE; (II) LIMIT OR EXCLUDE THE USE OF ANY MULTIPLIER ON OR INCREASE TO DAMAGES; AND/OR (III)LIMIT THE LIABILITY OF VIVID PICKS, AND ANY OTHER INDEMNIFIED PARTY, TO THE GREATER OF (1) THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE OVER THE PAST TWELVE (12) MONTHS; OR (2) $200. THESE LIMITATIONS OR EXCLUSIONS MAYNOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION DO NOT APPLY TO THE EXTENT,AND ONLY TO THE EXTENT, NOT PERMITTED BY APPLICABLE LAW.
26. Arbitration and DisputeResolution
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE SUBMITTED TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS) AND LIMITING YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS.
You and Vivid Picks each agree that, except as provided in the “Exceptions” provision below, any and all disputes, controversies, disagreements, or claims arising in any way out of or relating in any way to: (i) these Terms; (ii) your use of, or access to, the App; (iii)Vivid Picks’ services or contests; (iv) any items sold or purchased on or through the App; or (iv) any marketing, advertising, statements, communications or representations regarding or related in any way to these Terms, the App or software (including access to and use thereof), Vivid Picks’ services or contests, and any items sold or purchased on or through the App shall be fully, finally, and exclusively resolved through final and binding arbitration rather than in court. Binding arbitration means that an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, you should read the entirety of this section carefully as it may significantly affect your legal rights.
You and Vivid Picks each waive any right to a jury trial as well as any right to bring claims in or otherwise participate in a class, representative, or consolidated action or proceeding, as set forth below.
Our past, present, and future affiliates and agents, as well as any of our successors and assigns, can invoke Vivid PICKs’ rights under this agreement in the event they become involved in a dispute.
This arbitration agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this arbitration agreement or any prior agreement as well as claims that may arise after the termination of this arbitration agreement, CONSISTENT WITH the “Opting Out” provision set forth herein.
Except as expressly set forth herein, if any provision of this arbitration agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
Exceptions: Notwithstanding the remainder of this Arbitration and Dispute Resolution section, you and VividPicks agree that the following types of disputes will be resolved in court, unless both you and Vivid Picks agree to submit the dispute to arbitration pursuant to this Arbitration and Dispute Resolution section:
(1) Disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as they are brought and maintained as an individual dispute and not as a class, representative, or consolidated proceeding or action; or
(2) Disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief).
For the avoidance of doubt, the waiver of the right to bring claims in or otherwise participate in a class, representative, or consolidated action or proceeding set forth in the “ClassAction, Class Arbitration, and Collective Relief Waiver” provision below does not prevent you from seeking public injunctive relief in an individual capacity to the extent otherwise permitted by law.
You and Vivid Picks also agree that for disputes or claims where both injunctive relief (including public injunctive relief) and non-injunctive relief are sought, you and VividPicks will first submit the dispute or claim for non-injunctive relief to arbitration pursuant to this “Arbitration and Dispute Resolution” section. The arbitrator will not be permitted to grant injunctive relief (unless the parties mutually agree otherwise). Once the arbitration of the dispute or claim for non-injunctive relief has concluded, you and/or Vivid Picks may seek the injunctive relief (including the public injunctive relief) in court to the extent permitted by law.
Any litigation in court of the foregoing types of disputes (except for small claims court actions) may be commenced only in a federal or state court located within Cook County,Illinois, and you and Vivid Picks each consent to the jurisdiction of those courts for such purposes. Regardless of whether the foregoing types of disputes in this Exceptions provision are resolved by a court or pursuant to arbitration, you and Vivid Picks agree that the dispute is subject to the “Class Action,Class Arbitration, and Collective Relief Waiver” provision set forth below.
Delegation: This agreement to arbitrate covers and includes threshold questions of arbitrability. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any and all disputes arising out of or relating to the formation, existence, scope, validity, interpretation, applicability, or enforceability of this agreement to arbitrate, or any part of it, or of theseTerms, including, but not limited to, any claim that all or any part of this agreement to arbitrate or the Terms is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees. If any party disagrees about whether the foregoing provision (or any portion of this agreement to arbitrate, including without limitation the provisions relating to arbitration, the waiverof class or representative proceedings, and opting out) can be enforced or whether it applies to the dispute, the parties all agree that the arbitrator will decide that dispute. Notwithstanding the foregoing, however, the parties agree that any issue concerning the validity of the Class Action, Class Arbitration, and Collective Relief Waiver and the batch arbitration provisions below must be decided by a court, and further agree that an arbitrator does not have authority to consider the validity of the Class Action, Class Arbitration, andCollective Relief Waiver and the batch arbitration provisions. Both you andVivid Picks understand and agree that we are waiving our right to sue or go to court to assert or defend our rights, except as expressly set forth herein. The arbitrator has the right to impose sanctions in accordance with the arbitrator provider’s rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith.
Governing Law: The FederalArbitration Act (“FAA”) governs this agreement to arbitrate in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of the parties’ arbitration agreement and all of its provisions, including, without limitation, the Class Action, Class Arbitration, andCollective Relief Waiver. State arbitration laws do not govern in any respect. Further, you and Vivid Picks each agree that the Terms evidence a transaction involving interstate commerce and will be governed by and construed in accordance with federal law to the fullest extent possible. To the extent state law applies, the parties’ arbitration agreement and the parties’ ClassAction, Class Arbitration, and Collective Relief Waiver shall be governed byIllinois law, subject to conflict of law principles.
Informal Initial DisputeMechanism: The parties shall use their best efforts first to settle informally any dispute, claim, question, or disagreement, and to engage in good-faith negotiations, before initiating arbitration or other legal proceedings, as applicable. Both you and we agree that this informal dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party. Failure to engage in this process could result in the award of fees against you. If either you orVivid Picks intends to bring a claim against the other, that party must first send to the other, by certified mail, a completed Intent to Arbitrate Notice("Intent Notice"). The Intent Notice to Vivid Picks should be sent toVivid Picks, LLC, Attention: Legal Department, 24 E. Washington Street, Suite900, Chicago, IL 60602. The written description must address only your individual dispute (and not that of any other person or class of persons) and must provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought.For any dispute that Vivid Picks initiates, we will send our written description of the dispute to the email address associated with your use of theApp. If you and Vivid Picks are unable to resolve the dispute described in theIntent Notice within thirty (30) days after the Intent Notice is sent, you orVivid Picks may initiate an arbitration or other legal proceeding, as permitted by this “Arbitration and Dispute Resolution” provision. Neither party may initiate an arbitration or other legal proceeding, as applicable, during this30-day period.
A good-faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating an arbitration or a lawsuit, as applicable. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process. If the party initiating litigation or arbitration, as applicable, does not satisfy any aspect of the requirements in this “Informal Initial Dispute Mechanism” section, a court can enjoin the filing or prosecution of the dispute in litigation or arbitration, as applicable. In addition, unless prohibited by applicable law, the arbitration provider cannot accept or administer the arbitration, nor assess any fees for such arbitration, if the party initiating arbitration does not satisfy any aspect of the requirements in this “Informal Initial Dispute Mechanism”section; if such arbitration already is pending, it must be dismissed.
Initiating ArbitrationProceedings; Rules, Venue, and Jurisdiction: After the parties have engaged in a good-faith effort to resolve their dispute(s) in accordance with the“Informal Initial Dispute Mechanism” section, and only if those efforts fail or if it is otherwise impossible for the parties to engage in the Informal InitialDispute Mechanism process, then either party may initiate arbitration as set forth herein. If you decide to initiate arbitration, a copy of the arbitration must be sent to Vivid Picks, LLC, Attention: Legal Department, 24 E. WashingtonSt., Floor 9, Chicago, IL 60602. If Vivid Picks is initiating arbitration, it will serve a copy of the demand to the email address associated with your use of vividpicks.com.
The arbitration will beadministered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules and Consumer Mass Arbitration SupplementaryRules, as modified by this agreement to arbitrate. In the case of face-to-faceproceedings, the proceedings should be conducted at a location which is reasonably convenient to both parties with due consideration of their abilityto travel and other pertinent circumstances. If the parties are unable to agreeon a location, the determination should be made by an Independent ADRInstitution or by a Neutral pursuant to the Consumer Due Process Protocol(available at https://www.adr.org/consumer). The AAA’s rules are available atwww.adr.org/rules. A form for initiating arbitration proceedings, Demand forArbitration, is available on the AAA website. In addition to filing the Demand for Arbitration with the AAA, in accordance with its rules and procedures, you must send a copy of the completed form to Vivid Picks at the following address:Vivid Picks, LLC, Attention: Legal Department, 24 E. Washington Street, Suite900, Chicago, IL 60602. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Illinois, subject to conflict of law principles. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
In the event that the AAA is unable to conduct the arbitration for any reason, you and Vivid Picks will mutually select an alternative arbitration provider, and the arbitration will be conducted pursuant to that provider’s applicable rules.
If the agreement to arbitrate is held unenforceable or invalid for any reason, any litigation against VividPicks (except for small claims court actions, as discussed above) may be commenced only in a federal or state court located within Cook County,Illinois, and you and we each consent to the jurisdiction of those courts for such purposes. The class action waiver set forth below shall still apply to the fullest extent permitted by law.
Arbitration Demand: Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this arbitration agreement and to these Terms. The arbitrator and/or AAA may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this arbitration agreement or to these Terms.
Selection of Arbitrator: The parties agree that there will be one arbitrator and that the process for appointing an arbitrator will be the following manner: The AAA shall send simultaneously to each party to the dispute an identical list of 10 names of persons chosen from the National Roster (unless the AAA decides that a different number is appropriate). For a dispute or claim relating to the intellectual property of you, Vivid Picks, or any of Vivid Picks’ corporate family members (for example, trademarks, trade dress, domain names, trade secrets, copyrights, or patents), the list from the National Roster shall be limited to individuals who either previously served as a federal judge or is an attorney who has specialized in intellectual property law for at least ten (10)years.
The parties will confer to attempt to agree to an arbitrator from the submitted list and to advise the AAA of their agreement. If the parties are unable to agree upon an arbitrator, each party to the dispute shall have 14 calendar days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA. The parties are not required to exchange selection lists. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable to that party. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve. If the parties fail to agree on any of the persons named, or if acceptable arbitrators are unable to act, or if for any other reason the appointment cannot be made from the submitted lists, theAAA shall have the power to make the appointment from among other members of the National Roster without the submission of additional lists, except that for the appointment of an arbitrator for a dispute or claim relating to the intellectual property of you, Vivid Picks, or any of Vivid Picks’ corporate family members (for example, trademarks, trade dress, domain names, trade secrets, copyrights, or patents), the individual appointed shall either previously have served as a federal judge or be an attorney who has specialized in intellectual property law for at least ten (10) years.
Dispositive Motions:Subject to the applicable AAA rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
Batching: To increase the efficiency of administration and resolution of arbitrations, in the event 25 or more claimants submit similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief), the parties are represented by the same or coordinated counsel, and the demands are submitted to AAA (or another arbitration provider selected in accordance with the arbitration agreement if AAA is unavailable) against Vivid Picks(“Mass Filing”), the parties agree (A) to administer the Mass Filing in batches of 25 demands per batch (to the extent there are fewer than 25 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (B) to designate one merits arbitrator foreach batch; (C) to accept applicable fees, including any related fee reduction determined by AAA (or another arbitration provider selected in accordance with this arbitration agreement if AAA is unavailable) in its discretion; (D) that arbitration awards in one batch shall have no precedential effect on subsequently administered batches; and (E) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Vivid Picks and the claimants, shall only be due after the demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication. If your demand for arbitration is included in theMass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.
Selection of a merits arbitrator for each batch shall be conducted to the greatest extent possible in accordance with the applicable AAA rules and procedures for such selection, and the merits arbitrator will determine the location where the proceedings will be conducted.
You agree to cooperate in good faith with Vivid Picks and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient and fair resolution of claims, including the payment of combined reduced fees, set byAAA in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by the AAA. Notwithstanding the foregoing, any challenge by a party to the applicability, validity, or enforceability of this “Batching” provision shall be decided only by a court of competent jurisdiction and not by an arbitrator.
In the event that this “Batching”provision is found to be invalid or unenforceable, or in the event that AAA (or another arbitration provider selected in accordance with this arbitration agreement if AAA is unavailable) declines to implement this “Batching”provision for any reason, the entire arbitration agreement shall be of no force and effect when there are 25 or more individual arbitration demands relating to the same or similar facts and asserting the same or similar claims for relief, brought by claimants represented by the same counsel or counsel coordinating with one another. The Class Action, Class Arbitration, and Collective ReliefWaiver, however, will still apply to the extent permitted by law.
This “Batching” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of AAA’s Consumer Mass Arbitration SupplementaryRules or authorizing class arbitration of any kind.
Arbitration Fees and Costs;Attorneys’ Fees and Expenses: Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, we will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below).Each party is responsible for his, her, or its own attorneys’ fees and expenses, and Vivid Picks will not pay your attorneys’ fees or expenses except to the extent ordered to do so by the arbitrator. If you prevail in arbitration, however, you will be entitled to an award of reasonable attorneys’ fees and expenses to the extent allowed for under applicable law and ordered by the arbitrator. In the event the arbitrator determines the claim you asserted in the arbitration to be frivolous according to Federal Rule of CivilProcedure 11, or brought for an improper purpose, you agree to reimburse VividPicks for all fees associated with the arbitration paid by Vivid Picks that you otherwise would have been obligated to pay under the AAA rules. In determining whether an action is frivolous, the arbitrator may consider whether we have offered you a full refund of the sum you paid for items you purchased or have otherwise offered full relief to you in relation to your individual claim. If the arbitrator, upon final disposition of the case, finds your dispute was not frivolous, Vivid Picks will reimburse any filing fees that you paid and were not otherwise reimbursed.
Opting Out: You can choose to reject this agreement to arbitrate. If you do not wish to be bound by this agreement to arbitrate and/or the Class Action, Class Arbitration, andCollective Relief Waiver, you must notify Vivid Picks in writing within thirty(30) days of the date that you first access the App or use the App, purchase on or through Vivid Picks’ website, its mobile application, or through its customer call center; otherwise you shall be bound to arbitrate disputes on an individual basis in accordance with the terms of this arbitration agreement. Your written notification must include your name and address, as well as a clear statement that you do not wish to resolve disputes with Vivid Picks through arbitration. Written notification should be mailed by certified mail to: VividPicks LLC, Attention: Legal Department, 24 E. Washington Street, Suite 900,Chicago, IL 60602. If you do not opt out within thirty (30) days, then you accept all terms and conditions of the arbitration and dispute resolution procedures described above. If you opt out of only the arbitration provisions, and not also the Class Action, Class Arbitration, and Collective Action Waiver, the Class Action, Class Arbitration, and Collective Action Waiver still applies. You may not opt out of only the Class Action, Class Arbitration, andCollective Action Waiver and not also the arbitration provisions; accordingly, if you opt out of the Class Action, Class Arbitration, and Collective ActionWaiver, you may not bring your claim in arbitration and may bring it only in court. If you opt out of the arbitration provisions, Vivid Picks also will not be bound by them.
Vivid Picks will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms pursuant to the requirements set forth in that version. If you do not timely opt out of this arbitration agreement, such action shall constitute mutual acceptance of the terms of these arbitration and Class Action, ClassArbitration, and Collective Action Waiver provisions by you and Vivid Picks. If you agreed to previous and/or other arbitration agreement(s) with Vivid Picks and opt out of this arbitration agreement, you remain bound by those prior and/or other arbitration agreement(s) and must arbitrate any and all claims or disputes covered by those prior and/or other arbitration agreement(s),regardless of whether those claims or disputes arise after the date you execute this agreement.
Waiver of Rights Including Jury Trial: The parties understand that ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION INSOME INSTANCES. YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND VIVID PICKS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Class Action, ClassArbitration, and Collective Relief Waiver: To the fullest extent permitted by applicable law, you and Vivid Picks each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“Class Action”). YOU AND VIVID PICKS AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. YOU AND VIVID PICKS EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. IFTHE DISPUTE IS SUBJECT TO ARBITRATION, THE ARBITRATOR WILL NOT HAVE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. FURTHER, YOU AND VIVID PICKS AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION.For the avoidance of doubt, however, You can seek public injunctive relief to the extent authorized by law, warranted by an individual claim(s), and consistent with the Exceptions clause above, and the “Batching” provision above shall also remain in effect where applicable.
IF THIS CLASS ACTION, CLASS ARBITRATION, AND COLLECTIVE RELIEF WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE AS TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT THAT THE PARTICULAR CLAIM OR REQUEST FOR RELIEF SHALL ONLY PROCEED IN COURT AS PROVIDED HEREIN, BUT SHALL BE SEVERED AND STAYED PENDING INDIVIDUAL ARBITRATION OF ANY REMAINING CLAIMS. IF THIS CLASS ACTION, CLASS ARBITRATION, AND COLLECTIVE RELIEF WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE AS TO AN ENTIRE DISPUTE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH DISPUTE SO LONG AS THE DISPUTE IS PERMITTED TO PROCEED AS A CLASS ACTION.
If there is a final judicial determination that applicable law precludes enforcement of the limitations of this Class Action, Class Arbitration, and Collective Relief Waiver as to a particular claim or remedy, then that claim or remedy (and only that claim or remedy) must be severed from the arbitration and may be brought in court and not in arbitration. The parties agree, however, that any adjudication of claims or remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
This provision does not prevent you or Vivid Picks from participating in a class-wide settlement of claims.
No Class or ConsolidatedArbitration Absent Written Consent: Unless Vivid Picks otherwise consents in writing, Vivid Picks does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances. For the avoidance of doubt, however, the “Batching” provision herein shall still apply.
Confidentiality: Unless applicable law provides otherwise, the arbitration proceeding and all records pertaining to it—including but not limited to any documents prepared or produced in connection with the arbitration proceeding, as well as the hearing, testimony, and the arbitration award—will be confidential and will not be disclosed to any third party, except to the arbitrator and their staff, the parties’ attorneys and their staff, and any experts retained by the parties, or as necessary to obtain court confirmation of the arbitration award or as otherwise required by law.
Arbitration Award: The arbitrator will render an award within the time frame specified in the applicable AAA rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award.Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this arbitration agreement, and subject to the “Exceptions” provision above. The parties agree that the damages and/or other relief must be consistent with the“Class Action, Class Arbitration, and Collective Relief” provision above, and also must be consistent with the terms of the “Limitation of Liability” section of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If the procedures set forth in the“Batching” provision apply, then arbitration awards in one batch shall have no precedential effect on subsequently administered batches. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration and awarded by the arbitrator.
27. Modification
Vivid Picks has the right, in its sole discretion, to modify, suspend or discontinue any part of this App at anytime, with or without notice.
28. Changes in Terms andConditions
Vivid Picks reserves the right, in its sole discretion, to change these Terms at any time. If Vivid Picks changes any term or condition, said modification, revision and additional information shall be posted here, automatically replace the existing terms and conditions, become effective immediately, and become binding on all users of this App to the extent permitted by applicable law. Your continued use of theApp following Vivid Picks' posting of revised Terms and conditions constitutes your acceptance of the revised agreement to the extent permitted by law.
If you reject any such changes by opting out of the revised arbitration agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law with respect to claims concerning or arising under the revised arbitration agreement. If you agreed to this arbitration agreement or a previous arbitration agreement with Vivid Picks and opt out of the revised arbitration agreement, you remain bound by this arbitration agreement and/or any prior arbitration agreement to which you did not opt out and must arbitrate any and all claims or disputes covered by this arbitration agreement and/or any such prior arbitration agreement, regardless of whether those claims or disputes arise after the date of the revised arbitration agreement. If Vivid Picks changes the terms of the arbitration sections after the date you first accepted the Terms (or accepted any subsequent changes to the Terms), you agree that your continued use of the site or Vivid Picks’ mobile application, or your continued purchases through our customer callcenter or of any product from or through Vivid Picks, after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out by providing notice as described herein.
29. Force Majeure
Vivid Picks shall not be deemed in default or otherwise liable under these Terms due to its inability to perform its obligations by reason of any act of God, fire, earthquake, blizzard, flood, epidemic, pandemic, danger to public health or safety, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, law, ordinance, regulation, legal order (unless caused by Vivid Picks’ default hereunder), failure or delay of any transportation, power, or communications system or any other similar cause not under Vivid Picks’ control.
30. Allocation of Risk
You acknowledge and agree that the foregoing disclaimers and limitations of liability represent bargained for allocations of risk and that the pricing and other terms and conditions of this agreement reflect such allocation of risk.
31. Queries and Disputes
If you have any concerns or questions regarding your account or the result of your participation in any contest on the App, you should contact us via email at support@vividpicks.com. We will make reasonable efforts to respond to disputes and queries as soon as possible.
32. Responsible Gaming
If you have concerns about your own gaming behavior or that of a friend or family member, resources are available through the NCPG and ICRG. You can also contact 1-800-522-4700, a 24-hour confidential national helpline for problem gaming, for assistance provided by the NCPG. Text and chat services are also available via NCPG.
33. Third-Party Beneficiaries
Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of theTerms, they will have the right (and will be deemed to have accepted the right)to enforce the Terms against you as a third-party beneficiary thereof. There are no other third-party beneficiaries of the Terms.
Notwithstanding the foregoing, you acknowledge that as between Apple and Vivid Picks, Vivid Picks is responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to (i) product warranty or liability claims; (ii) any claim that theApp fails to conform to any applicable legal or regulatory requirement; (iii)claims arising under consumer protection or similar legislation; or (iv) claims that the App infringes a third party’s intellectual property rights.
34. Additional Provisions
No agency, partnership, joint venture or other relationship is intended or created by your use of the App.
These Terms, the use of the App and Software, and any contest entries made hereunder will be governed by the laws of the State of Illinois, subject to conflict of law principles.
These Terms contain the entire understanding of the parties with respect to the matters contained herein and supersede and replace in its entirety any and all prior communications and contemporaneous agreements and understandings between the parties, whether oral, written, electronic or implied.
All waivers by Vivid Picks under these Terms must be in writing or later acknowledged by Vivid Picks in writing.Any waiver or failure by Vivid Picks to enforce any provision of these Terms on one occasion will not be deemed a waiver by Vivid Picks of any other provision or of such provision on any other occasion.
If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, that provision will be ineffective to the extent necessary to comply with applicable law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the applicable law, and the remaining provisions in this agreement will remain in full force (except as discussed above with respect to the “Class Action, Class Arbitration, and Collective Relief Waiver”and "Batching” provisions).
If any provision of these Terms is held invalid or unenforceable under any circumstance, their application in any other circumstances and the remaining provisions shall not be affected(except as discussed above with respect to the “Class Action, ClassArbitration, and Collective Relief Waiver” and “Batching” provisions). Further, the provision that has been deemed to be invalid or ineffective shall been forced to the greatest extent permitted by law.
The heading at the beginning of each paragraph is for reference purposes and in no way defines the scope or extent of such paragraph.
Without limitation, you agree that a printed version of these Terms and of any notice given in electronic or other written form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Vivid Picks will not be responsible for failures to fulfill any obligations due to causes beyond its control.