Terms of Service
Welcome to BananaSplit Club! These terms of service ("Terms of Service") cover your use and access to our website, Resident Center, mobile apps, and related services (the "Website"). The Website is provided by BananaSplit Club, LLC (the "Company"). These Terms of Service govern your use of the Website only; the Residential Real Estate License Agreement governs your rights as a Member and the right to occupy and use the Facility.
BY ACCESSING OR USING THE WEBSITE, YOU AGREE TO THESE TERMS OF SERVICE. PLEASE READ THEM CAREFULLY.
1. Ownership
The Company retains all right, title and interest in the Website. You agree not to claim any rights to, or ownership of the Website. You acknowledge and agree that the Company owns and retains all proprietary rights to material contained in the Website, including trademarks, content, and other proprietary content. The Company reserves the right at any time and from time to time to modify, discontinue temporarily or permanently the Website of any part or portion thereof, with or without notice to you.
2. User Eligibility
By using the Website, you represent and warrant (a) you are at least eighteen (18) years of age and are recognized as being able to form legally binding contracts under applicable law; (b) all registration information you submit will be true and accurate and updated as necessary to maintain accuracy; (c) you will not access the Website through automated or non-human means, whether through a bot, script or otherwise; (d) you will not use the Website for any illegal or unauthorized purpose; and (e) your use of the Website will not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, not current, or incomplete, the Company may suspend or terminate your account and refuse any and all current or future use of the Website (or any portion thereof).
3. User Registration
You must register with the Website to become a Member. You agree to keep your password confidential and will be responsible for all use of your account and password. The Company reserves the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
4. Limitations on Use and Prohibited Activities
You may not use the Website for any purpose other than that for which the Company has made the Website available. As a user of the Website, you shall not:
(a) Duplicate, download, publish, modify, create derivatives or otherwise distribute the Website for any commercial use, or for any purpose other than as described in these Terms of Service;
(b) Use the Website in any manner that harasses, invades the privacy of or harms a person in any way;
(c) Violate any international, federal, state, or local law, rule or regulation, whether now existing or enacted in the future, or in any manner that would cause the Company to violate any such laws, rules, or regulations;
(d) Engage in any automated use of the Website or using any data mining, robots or similar data gathering and extraction tools;
(e) Spam, phish, pharm, pretext, spider, crawl, or scrape;
(f) Attempt to impersonate another user or person or use the username of another user;
(g) Systematically use the Website to create or compile, directly or indirectly, a collection, compilation, database or directory without the Company's written permission;
(h) Infringe upon or violate the Company's intellectual property rights or the intellectual property rights of others;
(i) Submit false or misleading information;
(j) Trick, defraud, or mislead the Company or other users, especially in any attempt to learn sensitive account information such as user passwords;
(k) Make improper use of our support services or submit false reports of abuse or misconduct;
(l) Upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website; or
(m) Interfere with or circumvent the security features of the Website.
You agree not to directly or indirectly, resell the content of the Website, nor use the Website to create a competing product.
The Company reserves the right to terminate your use of the Website for violating any of the prohibited uses.
5. Privacy Policy
Data privacy and security is important to the Company. The Company will not share your personal information with any third party without your consent, or otherwise as may be required by law.
6. Term and Termination
These terms shall remain in full force and effect while you use the Website.
Without limiting any other provision of these Terms of Service, the Company expressly reserves the right to deny, cancel, terminate, suspend, or limit your future access to the Website, without notice or liability to you. If the Company terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
7. Indemnification
The to the fullest extent permitted by law, you agree to indemnify, defend and hold harmless the Company and its owners/equity members, managers, employees, officers, directors, agents and affiliates, from and against any losses, claims, damages or liabilities, including but not limited to attorneys' fees and costs, resulting from or arising out of (i) your use and access of the Website, by you or any person using your account and password, or (ii) a breach of these Terms of Service. Notwithstanding the foregoing, the Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which are you are required to indemnify the Company and its subsidiaries, affiliates, officers, agents, partners, and employees, and you agree to cooperate, at your expense, with the defense of such claims.
8. Limitation of Liability
YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. YOU ALONE ASSUME THE SOLE RESPONSIBILITY TO EVALUATE THE MERITS OR RISKS ASSOCIATED WITH THE USE OF THE WEBSITE OR ANY OTHER CONTENT PROVIDED BY THE COMPANY.
In no event shall the Company or its owners/equity members, managers, employees, officers, directors, agents and affiliates be liable to you for any direct, indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses arising from or relating to the Website or your use of the Website, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not the Company has been informed of the possibility of such damages. Notwithstanding anything contained in the Terms of Service to the contrary, the Company's liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount of the License Fee paid, if any, by you to the Company.
9. Disclaimer
THE WEBSITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND COURSE OF PERFORMANCE. THE FUNCTIONS, MATERIALS AND CONTENT OF THE WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND THE COMPANY MAKES NO WARRANTY THAT THE WEBSITE WILL BE ACCURATE, CURRENT OR RELIABLE OR THAT THE QUALITY ANY PRODUCTS, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR EXPECTATIONS. THE COMPANY DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. YOU ASSUME THE ENTIRE RISK OF LOSS AND DAMAGE DUE TO YOUR USE OF THE WEBSITE, INCLUDING BUT NOT LIMITED TO THE COST OF REPAIRS OR CORRECTIONS TO YOUR HARDWARE OR SOFTWARE.
THE WEBSITE AND ANY INFORMATION PROVIDED BY COMPANY ARE FOR GENERAL INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO PROVIDE OR BE CONSTRUED IN ANY WAY AS LEGAL ADVICE OR AS SUBSTITUTE FOR LEGAL ADVICE. YOU SHOULD NOT ACT, OR REFRAIN FROM ACTING, BASED SOLELY UPON THE INFORMATION PROVIDED BY THE COMPANY WITHOUT FIRST SEEKING APPROPRIATE LEGAL OR OTHER PROFESSIONAL ADVICE. IF YOU HAVE ANY SPECIFIC QUESTIONS ABOUT ANY LEGAL MATTER, YOU SHOULD CONSULT YOUR LAWYER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, AND AS A CONSEQUENCE SOME OF THE ABOVE DISCLAIMERS OR LIMITATIONS ON LIABILITY MAY NOT APPLY TO YOU.
10. Dispute Resolution – Arbitration Agreement
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIAL.
You and the Company agree that any dispute, controversy, or claim related to these Terms of Service or the Website (each a "Dispute") shall be resolved by binding arbitration as set forth in this Arbitration Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COUT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED.
NOTICE OF DISPUTE. In the event of a Dispute, you or the Company must first send the other party a notice of Dispute that shall include a written statement setting forth the name, address and contact information of the party sending the notice, the facts giving rise to a Dispute, and the relief requested (the "Dispute Notice"). The Dispute Notice to the Company must be emailed to the Company at [EMAIL ADDRESS]. The Dispute Notice to you will be sent by the most recent email address on file with the Company or by certified mail to the most recent physical address on file with the Company. If the Company and you do not reach an agreement to resolve the Dispute within thirty (30) days after the Dispute Notice is received, you or the Company may commence an arbitration proceeding pursuant to this Arbitration Agreement. Upon issuance and receipt of a Dispute Notice, you and the Company agree to act in good faith to resolve the Dispute before commencing arbitration.
WAIVER OF CLASS ACTION AND CLASS ARBITRATIONS. You and the Company agree that each party may bring Disputes against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Neither you nor the Company will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either part acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
ARBITRATION PROCEDURE. If a party elects to commence arbitration, that party shall send the other party a written demand for arbitration, which shall include a general description of the dispute and the type of relief sought. Within twenty (20) days from the date of the demand for arbitration, the parties shall select single arbitrator by mutual consent. If the parties are unable to agree upon a single arbitrator within twenty (20) days from the date of the demand for arbitration, then each party shall select one person to act as an arbitrator and the two so selected shall select a third arbitrator. All arbitrators shall serve as neutral, independent and impartial arbitrators. The arbitrator is bound by these Terms of Service. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitration hearings not conducted by video shall take place in Maricopa County, Arizona.
The Company and you agree that the following Disputes shall not be subject to arbitration: (a) any Dispute related to, or arising from, allegations of unauthorized used; and (b) any claim for injunctive relief. The Company and you agree that any Dispute or controversy excluded from arbitration shall be filed only in the Superior Court of Maricopa County, Arizona, or the United States District Court for the District of Arizona, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy. You and the Company also agree to waive the right to trial by jury in any such action or proceeding.
To the extent permitted by law, any Dispute must be brought within one (1) year after the Dispute arises, or any cause of action relating to such Dispute is barred.
11. Changes
The Company may change these Terms of Service, in whole or in part, at any time. Changes will be posted online in these Terms of Service. The Company will alert you about any changes by updating the "Last Updated" date of these Terms of Service, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review the Terms of Service to stay informed of updates. Your continued use of the Website shall constitute your acceptance of all changes, and each use of the Website constitutes your reaffirmation of your acceptance of these Terms of Service. If you do not agree to the changes to these Terms of Service, your sole and exclusive remedy will be to terminate your account and cease use of the Website.
12. Miscellaneous Terms
The relationship between you and the Company is not one of agency or partnership and neither you nor the Company shall be deemed to be a partner, employee, fiduciary, agent or representative of the other by your use of the Website. You may not assign or transfer your rights to any third party.
The Terms of Service constitute the entire agreement and understanding between you and the Company. You agree that the Terms of Service will not be construed against the Company by virtue of having drafted them. The Terms of Service are governed by the laws of the State of Arizona, without regard to the choice or conflicts of law provisions.
The terms and conditions in these Terms of Service are severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall still be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other provisions.
The Company's failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of such right or provision.
The Company may assign its rights and obligations under these Terms of Service. These Terms of Service will inure to the benefit of the Company's successors, assigns and licensees.