By creating an event on the ParkUpFront App, and running payments through ParkUpFront LLC (PUF), you agree to our terms of service (https://www.parkupfront.com/termsofservice), our liability waiver (https://www.parkupfront.com/liabilitywaiver) and our merchant agreement.
1. You, as the event organizer are solely responsible for the execution of your event. PUF shall not be held responsible for any damages related to your event.
1.1 Release. You hereby agree to release PUF from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users) in connection with the Services or any event listed on the Services. In addition, you waive any applicable law or statute, which says, in substance: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY."
1.2 Indemnification. You agree to defend, indemnify and hold PUF and each of its and their respective officers, directors, agents, co-branders, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise) or investigation made by any third party (each a "Claim") relating to or arising out of: (a) your breach of these Terms (including any terms or agreements or policies incorporated into these Terms); (b) your use of the Services in violation of these Terms or other policies we post or make available; (c) your breach of any applicable local, state, provincial, national or other law, rule or regulation or the rights of any third party; (d) PUF’s collection and remission of taxes; and (e) if you are an Organizer, your events (including where PUF has provided Services with respect to those events), provided that in the case of (e) this indemnification will not apply to the extent that the Claim arises out of PUF's gross negligence or willful misconduct. PUF will provide notice to you of any such Claim, provided that the failure or delay by PUF in providing such notice will not limit your obligations hereunder except to the extent you are materially prejudiced by such failure. Also, in certain circumstances, PUF may choose to handle the Claim ourselves, in which case you agree to cooperate with PUF in any way we request.
1.3. Disclaimer of Warranties and Assumption of Risks by You
To the extent permitted by applicable laws, the Services are provided on an "as is" and "as available" basis. PUF expressly disclaims all warranties of any kind, express or implied, including, but not limited to, implied warranties of merchantability, title, non-infringement and fitness for a particular purpose. For example, PUF makes no warranty that (a) the Services (or any portion of the Services) will meet your requirements or expectations; (b) the Services will be uninterrupted, timely, secure, or error-free; or (c) the results that may be obtained from the use of the Services will be accurate or reliable.
You acknowledge that PUF has no control over and does not guarantee the quality, safety, accuracy or legality of any event or Content associated with an event, the truth or accuracy of any information provided by Users (including the Consumer's personal information shared with Organizers in connection with events) or the ability of any User to perform or actually complete a transaction. PUF has no responsibility to you for, and hereby disclaims all liability arising from, the acts or omissions of any third parties that PUF requires to provide the Services, that an Organizer chooses to assist with an event, or that you choose to contract with when using the Services.
You understand and agree that some events may carry inherent risk, and by participating in those events, you choose to assume those risks voluntarily. For example, some events may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those events.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law.
1.4. Limitation of Liability
To the extent permitted by applicable laws, or as otherwise set forth herein, PUF and any person or entity associated with PUF's provision of the Services (e.g., an affiliate, vendor, strategic partner or employee) ("Associated Parties"), will not be liable to you or any third party, for: (a) any indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, opportunity costs, intangible losses, or the cost of substitute services (even if PUF has been advised of the possibility of such damages); or (b) Your Content. In addition, other than the obligation of PUF to pay out Event Registration Fees in certain circumstances to certain organizers under the Merchant Agreement, and only in accordance with the terms therein, the maximum aggregate liability of PUF or Associated Parties is limited to the following:
(i) for Organizers of events with paid tickets, and subject to the terms of the Merchant Agreement, the fees (net of PUF Payment Processing Fees) that you paid us in the three (3) month period immediately preceding the circumstances giving rise to your claim; and
(ii) for Organizers of events with free tickets only, Consumers or other Users, (1) the total amount of all tickets or registrations that you purchased or made through the Services in the three (3) month period immediately preceding the circumstances giving rise to your claim; or (2) if you made no such purchases, one hundred U.S. dollars (US $100).
1.5 Nothing in these Terms is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by willful acts, negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only those liability and other limitations which are lawful in your jurisdiction (if any) will apply to you and our liability is limited to the maximum extent permitted by law.
2. IMPORTANT: BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. ANY DISPUTE OR CLAIM UNDER THESE TERMS OR WITH RESPECT TO THE SERVICES WILL BE SETTLED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT (TO THE EXTENT THE CLAIM QUALIFIES) AND WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY; YOU AGREE THAT CLASS, CONSOLIDATED OR REPRESENTATIVE ARBITRATIONS AND CIVIL ACTIONS ARE NOT PERMITTED AND ANY RIGHTS TO BRING SUCH ACTIONS ARE WAIVED BY EACH PARTY.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
(a) Contact Us First.
If you have a question or concern about the Services, please contact us first. Our customer support team will try to answer your question or resolve your concern.
(b) Agreement to Arbitrate.
In the unlikely event that our customer support team is unable to resolve your concerns, the parties (you and we) each hereby agree to resolve any and all disputes or claims under these Terms, with respect to the Services, or related to our relationship through binding arbitration or in small claims court (to the extent the claim qualifies) instead of in courts of general jurisdiction, and only on an individual basis. In no event may either we or you seek to resolve a dispute with the other as part of any purported class, consolidated or representative proceeding. Binding arbitration is subject to very limited review. Only the arbitrator appointed pursuant to this Section, and not any federal, state or local court will have the authority to resolve any dispute or claim relating to this Section including, without limitation, regarding the scope, enforceability and arbitrability of these Terms. This arbitration provision will survive termination of these Terms. These Terms evidence a transaction in interstate commerce and the interpretation and enforcement of this Section 2 is governed by the Federal Arbitration Act, notwithstanding the choice of law set forth in Section 2(h) below.
(c) Scope of Agreement.
This agreement to arbitrate is intended to be broadly interpreted as to legal disputes between you and us. It includes, but is not limited to: (i) all claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) all claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); and (iii) all claims that may arise after termination of these Terms and/or your use of the Services.
(e) No Class Actions.
YOU AND PUF AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT PRESIDE OVER ANY FORM OF CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING AND MAY ONLY PROVIDE RELIEF IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM.
(f) Notice of Dispute.
A party who intends to seek arbitration must first send to the other a written Notice of Dispute ("Notice"). The Notice to PUF must be sent to email@example.com Notice to you will be addressed to an email address on file with PUF. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If PUF and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or PUF may commence an arbitration proceeding.
(g) Arbitration Proceedings.
The arbitration will be governed by the Commercial Arbitration Rules, or, if the actions giving rise to the dispute or claim relate to your personal or household use of the Services (rather than business use), the Consumer Arbitration Rules (in each case, the "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Section 2, and will be administered by the AAA and settled by a single arbitrator. (The AAA Rules are also available by calling the AAA at 1-800-778-7879.) All issues in dispute between the parties are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Section 2.
(h) Location of Arbitration Proceedings. If you are a Consumer, any arbitration hearings will take place by phone or the hearing will take place either in Frisco, TX or by phone or videoconference, at your option and as permitted by the AAA Rules. If your claim is for ten thousand dollars ($10,000) or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds ten thousand dollars ($10,000), the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All decisions by the arbitrator will be final and binding and judgment on the award rendered may be entered in any court having jurisdiction.
(i) Costs of Arbitration; Legal Fees.
i. Payment of Costs and Expenses. Payment of all filing, administration, and arbitrator costs and expenses imposed by AAA will be governed by the AAA rules, provided that if you are initiating an arbitration against PUF and the value of the relief sought is ten thousand dollars ($10,000) or less, then PUF will advance all filing, administrative and arbitration costs and expenses imposed by AAA (subject to reimbursement as set forth below). Further, if the circumstances in the preceding sentence apply and your claim arises from your use of the Services as a Consumer, but the value of relief sought is more than ten thousand dollars ($10,000) and you demonstrate to the arbitrator that such costs and expenses would be more expensive than a court proceeding, then PUF will pay the amount of any such costs and expenses. In the event that the arbitrator determines that all of the claims you assert in arbitration are frivolous according to Federal Rule of Civil Procedure 11, you agree to reimburse PUF for all such cost and expenses that PUF paid and that you would have been obligated to pay under the AAA rules.
ii. Payment of Legal Fees. Just as in any court proceeding, each party will initially bear its own attorneys' fees and expenses in connection with any arbitration. Should either party be determined to have substantially prevailed in the arbitration, then upon such party's request, the arbitrator will award such prevailing party the reasonable attorneys' fees and expenses that it incurred in connection with the arbitration, provided that to the extent that the dispute or claim relate to your personal or household use of the Services (rather than business use) PUF will not seek to recover its attorneys' fees and expenses in an arbitration initiated by you. The arbitrator may make rulings and resolve disputes as to the reimbursement of attorneys' fees and expenses upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
3. Licenses and Permits Organizers Must Obtain
If you are an Organizer, without limiting the generality of any representations or warranties provided elsewhere in these Terms of Service, you represent and warrant to us that:
(a) You and your affiliates will obtain, prior to the start of ticket sales, all applicable licenses, permits, and authorizations (individually and collectively, "Licensure") with respect to events hosted by you or your affiliates on the Services. Licensure includes but is not limited to property operation permits and fire marshal permits;
(b) You and your affiliates will comply, and will ensure that the venues for each event hosted by you or your affiliates on the Services will comply, with all applicable laws, regulations, rules and ordinances;
(c) You will only request that PUF offer tickets to an event after you have obtained any specific Licensures for such event, including, but not limited to, any state, county, municipal or other local authority's authorization of the event, traffic engineering authorizations, fire department inspection reports, authorization to receive minors (if applicable), sanitary authorization (if applicable), and any other potential applicable authorization; and (d) you and your affiliates will maintain in force throughout the term of access to the Service the applicable Licensure for organizer to promote, produce, sponsor host and sell tickets for all events hosted by you or your affiliates on the Services
(d) Without limiting the generality of any release provided under these Terms of Service, as a material inducement to PUF permitting you to access and use the Services, you hereby agree to release PUF, and its affiliates and subsidiaries, and each of its and their respective parent companies, subsidiaries, officers, affiliates, representatives, shareholders, contractors, directors, agents, partners and employees from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, including, without limitation, attorneys' fees, known and unknown, arising out of or in any way connected with your or your affiliates' Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure.
(e) Without limiting your indemnification obligations elsewhere under these Terms of Service, you agree to defend, indemnify and hold PUF, and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, co-branders, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any Claim due to or arising out of your or your affiliates' Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure. You agree to provide evidence of Licensure and related information prior to offering tickets or registrations for events on the Site and promptly upon the reasonable request of PUF from time to time.
4. Fees and Refunds.
4.1 We charge fees when PUF processes your event payments through the app. PUF charges a fifteen percent (15%) fee for any tickets that are sold through the app, unless otherwise agreed upon with the event organizer.
4.2 Refunds. Because all transactions are between an Organizer and its respective attendees, PUF asks that all Consumers contact the applicable Organizer of their event with any refund requests.
5.1 PUF can release funds through PAYPAL, or via bank wire. Please be advised that PUF will add a $25 fee for any bank wire. In certain circumstances, PUF can also release funds through Zelle or VENMO. Please email us your preferred payment method to firstname.lastname@example.org. PUF will initiate payment to you no later than 7 business days AFTER your event occurred.
6.1 License. PUF does not make any claim to Your Content. However, you are solely responsible for Your Content. You hereby grant PUF a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable right and license to access, use, reproduce, transmit, adapt, modify, perform, display, distribute, translate, publish and create derivative works based on Your Content, in whole or in part, in any media, for the purpose of operating the Services (including PUF's promotional and marketing services, which may include without limitation, promotion of your event on a third party website), and you hereby waive any and all moral right to use the name you submit with Your Content. Notwithstanding the foregoing, PUF does not claim, and you do not transfer, any ownership rights in any of Your Content and nothing in these Terms of Service will restrict any rights that you may have to use and exploit Your Content outside of the Services.
6.2 Your Representations About Your Content. You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (a) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party; (b) complies with all applicable local, state, provincial, national and other laws, rules and regulations; and (c) does not violate these Terms.
6.3 Additional Rules About Your Content. Your Content must be accurate and truthful. PUF reserves the right to remove Your Content from the Services if PUF believes in its sole discretion that it violates these Terms, or for any other reason. PUF may use your name and logo (whether or not you have made it available through the Services) for the purpose of identifying you as an existing or past customer of PUF both on the Services and in marketing, advertising and promotional materials. We likewise may preserve Your Content and account information and may also disclose Your Content and account information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) respond to claims that any of Your Content violates the rights of third parties; (c) enforce or administer the Terms of Service, including without limitation, these Terms of Service; and/or (d) protect the rights, property and/or personal safety of PUF, its users and/or the public, including fraud prevention. You understand that the technical processing and transmission of the Services, including Your Content, may involve transmissions over various networks and/or changes to conform and adapt to technical requirements of connecting networks or devices.
7. Entire Agreement
Except as otherwise set forth herein, these Terms constitute the entire agreement between you and PUF and govern your use of the Services, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and PUF on the subject matter hereof, other than any written agreement for Services between you and an authorized officer of PUF relating to a specified event or events.
8. Applicable Law and Jurisdiction
These Terms are governed by the laws of the State of Texas, without regard to its conflict of laws rules. These laws will apply no matter where in the world you live. But if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law. PUF is based in Frisco, TX, and any legal action against PUF related to our Services and that is not precluded by the arbitration provisions in these Terms must be filed and take place in Frisco. Thus, for any actions not subject to arbitration, you and PUF agree to submit to the personal jurisdiction of the federal or state courts (as applicable) located in Denton County, TX.