Last updated September 21, 2023
- AGREEMENT TO TERMS
These Terms of Use and Conditions (“Terms”) constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you” or “your”) and Bahia Bowls Franchising, registered office located at 20301 Grand Oak Blvd, Suite 118-24, Estero Florida 33928 and doing business as Bahia Bowls Franchising (“Bahia Bowls Franchising,” “we,” “us,” or “our”), concerning your access to and use of the https://www.bahiabowls.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agreed to be bound by all of these Terms. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Through our Site, and otherwise, you may opt in to receive emails, text messages to the mobile number you provide to us or push notifications from Bahia Bowls Franchising. When you opt into any of these types of communications, you understand and consent that that you will receive marketing, transactional and other messages from Bahia Bowls Franchising.
Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated as Terms herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms every time you use our Site so that you understand which Terms apply. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of the Site after the date such revised Terms are posted.
We make no representation that the products and services available through our site are appropriate or available for use in locations outside of the United States and accessing them from territories where such products and services are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with all local and applicable laws.
The Site is intended for users who are at least 13 years of age. All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to use the Site. If you are a minor, you must have your parent or guardian read and agree to these Terms prior to you using the Site.
2. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
You cannot, under any circumstances, use any Mark with modifying words, designs or symbols, except for those which we license to you or have expressly approved in writing. You cannot modify a Mark in any way without our express written consent. All materials containing our proprietary marks must include the applicable designation service mark SM, trademark ™, registered trademark ®, copyright ©, or any other designation we specify. You may not use any Mark in connection with the sale of an unauthorized product or service or in a manner not authorized in writing by us. You may not, under any circumstances, use any of the Marks, including “Bahia Bowls Franchising,” in any manner, in the name of your corporation, limited liability company, partnership, or other legal entity.
Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.
You may not use, post, or establish any electronic media on the Internet, or any social media, for viewing by the public that contains our registered trademarks without our prior written approval. This includes, but is not limited to, the following platforms: Twitter®, Facebook®, MySpace®, SnapChat®, TikTok®, Instagram®, YouTube®, or similar pages.
3. USER REPRESENTATIONS
By using the Site, you represent and warrant that: (1) you have the legal capacity, and you agree to comply with these Terms; (2) you are not under the age of 13; (3) you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Site; (4) you will not access the Site through automated or non-human means, whether through a bot, script, or otherwise; (5) you will not use the Site for any illegal or unauthorized purpose; and (6) your use of the Site will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we reserve the right to refuse any and all current or future use of the Site (or any portion thereof), and to suspend or terminate your account to the extent one exists or comes into existence or otherwise becomes a feature of the Site.
4. PROHIBITED ACTIVITIES
You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Site, you agree not to:
Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords (to the extent password(s) exist(s) or come(s) into existence).
Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
Use any information obtained from the Site in order to harass, abuse, or harm another person.
Make improper use of our support services or submit false reports of abuse or misconduct.
Use the Site in a manner inconsistent with any applicable laws or regulations. Engage in unauthorized framing of or linking to the Site.
Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
Delete the copyright or other proprietary rights notice from any Content.
Attempt to impersonate another user or person or use the username of another user (to the extent a username exists or comes into existence).
Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
Use a buying agent or purchasing agent to make purchases on the Site, unless pursuant to an agreement between Bahia Bowls Franchising and a third-party, or except as otherwise specifically provided for through the Site.
Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses to the extent usernames, accounts, and the like become a feature of the Site.
Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise.
Use the Site to advertise or offer to sell goods and services.
Sell or otherwise transfer your profile (to the extent a profile exists or comes into existence).
5. USER GENERATED CONTRIBUTIONS
The Site does not offer users to submit or post content. We may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”). Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions you transmit may be treated in accordance with the Site Privacy Policy. When you create or make available any Contributions, you thereby represent and warrant that:
The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third-party.
You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site, and other users of the Site to use your Contributions in any manner contemplated by the Site and these Terms.
You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Site and these Terms.
Your Contributions are not false, inaccurate, or misleading.
Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
Your Contributions do not violate any applicable law, regulation, or rule.
Your Contributions do not violate the privacy or publicity rights of any third-party.
Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
Your Contributions do not include any offensive comments that are connected to race, religion, age, national origin, gender, sex, mental or physical condition or any other legally recognized protected class under federal, state, or local law.
Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms, or any applicable law or regulation.
Any use of the Site in violation of the foregoing violates these Terms and may result in, among other things, termination, or suspension of your rights to use the Site.
6. CONTRIBUTION LICENSE
You and the Site agree that we may access, store, process, and use any information and personal data that you provide following the terms of the Privacy Policy and your choices (including settings).
By submitting suggestions or other feedback regarding the Site, you agree that we can use and share such feedback for any purpose without compensation to you.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights, or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to indemnify and hold us harmless from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
7. MOBILE APPLICATION LICENSE
Use License
If you access the Site via a mobile application, then we grant you a revocable, non- exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms. You shall not, except as permitted by applicable law: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
Apple and Android Devices
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Site: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms against you as a third-party beneficiary thereof.
8. SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site (“Submissions”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
9. THIRD-PARTY WEBSITE AND CONTENT
The Site may contain (or you may be sent via the Site) links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
10. SITE MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Site for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.
11. PRIVACY POLICY
We care about data privacy and security. By using the Site, you agree to be bound by our Privacy Policy posted on the Site, which is incorporated into these Terms. Please be advised the Site is hosted in the United States. If you access the Site from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States. Further, we do not knowingly accept, request, or solicit information from children or knowingly market to children. Therefore, in accordance with the U.S. Children’s Online Privacy Protection Act, if we receive actual knowledge that anyone under the age of 13 has provided personal information to us without the requisite and verifiable parental consent, we will delete that information from the Site as quickly as is reasonably practical.
12. TERM AND TERMINATION
These Terms shall remain in full force and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, WE RESERVE THE RIGHT TO, SUBJECT TO APPLICABLE LAW, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY NON-DISCRIMINATORY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION, SUBJECT TO APPLICABLE LAW.
If we terminate or suspend your account (to the extent one exists or comes into existence) for any reason, you are prohibited from registering and creating a new account (provided the creation of accounts becomes an available feature on the Site) 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. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
13. MODIFICATIONS AND INTERRUPTIONS
To the extent provided by law, we reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time. We will not be liable to you or any third-party for any modification, price change, suspension, or discontinuance of the Site.
We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.
14. GOVERNING LAW
These Terms and your use of the Site are governed by and construed in accordance with the laws of the State of Estero Florida applicable to agreements made and to be entirely performed within the State of Estero Florida, without regard to its conflict of law principles.
15. DISPUTE RESOLUTION
Negotiation and Mediation
In good faith and in the spirit of cooperation, you and Bahia Bowls Franchising (herein the “parties”) pledge to try to resolve any dispute without litigation or arbitration. Without limiting any other provisions of these Terms, you and Bahia Bowls Franchising agree that if any dispute arises between the parties, the parties will first follow the procedures described in this section before beginning any legal action or arbitration to interpret or enforce the Terms. Good faith participation in these procedures to the greatest extent reasonably possible, despite lack of cooperation by one or more of the other parties, is a precondition to maintaining any legal action or arbitration to interpret or enforce the Terms.
The party that initiates these negotiation or mediation procedures (“Initiating Party”) must give written notice to the other party, describing in general terms the nature of the dispute, specifying the Initiating Party’s claim for relief including the damages sought, and identifying one or more persons with authority to settle the dispute for it, him, her, or them. The party receiving the notice (“Responding Party”) has seven (7) business days from the receipt of written notice within which to designate by written notice to the Initiating Party one or more persons with authority to settle the dispute on the Responding Party’s behalf (the “Authorized Persons”).
The Authorized Persons may investigate the dispute as they consider appropriate but agree to meet in-person at a location designated by Bahia Bowls Franchising within seven (7) business days from the date of the designation of Authorized Persons to discuss resolution of the dispute. The Authorized Persons may meet at any times and places, and as often as they agree. If the dispute has not been resolved within ten (10) business days after their initial meeting, either party may begin mediation procedures by giving written notice to the other party that it is doing so.
The Authorized Persons will have seven (7) business days from the date on which one party gives notice that it, he, she, or they are beginning mediation within which to submit to one another written lists of acceptable mediators who are not associated with either of the parties. Within seven (7) business days from the date of receipt of any list, the Authorized Persons must rank all the mediators in numerical order of preference and exchange the rankings. If one or more names are on both lists, the highest ranking one of these will be designated the mediator. If this process does not result in selection of a mediator, the parties agree jointly to request that the American Arbitration Association supply a list of qualified potential mediators. Within seven (7) business days after receipt of the list, the parties must again rank the proposed mediators in numerical order of preference and must simultaneously exchange their lists. The mediator having the highest combined ranking shall be appointed as mediator. If the highest-ranking mediator is not available to serve, the parties must go on to contact the mediator who was next highest in ranking until they are able to select a mediator.
In consultation with the parties, the mediator shall promptly designate a mutually acceptable time and place for the mediation. Unless circumstances make it impossible, the time may not be later than sixty (60) business days after selection of the mediator.
If either party to these Terms believes it, he, she, or they need information in the possession of another party to these Terms to prepare for the mediation, all parties must attempt in good faith to agree on procedures for an exchange of information, with the help of the mediator, if required.
At least seven (7) business days before the first scheduled mediation session, each party must deliver to the mediator, and to the other party, a concise written summary of its views on the matter in dispute and on any other matters that the mediator asks them to include. The mediator may also request that each party submit a confidential paper on relevant legal issues, which may be limited in length by the mediator, to him or her.
In the mediation, each party must be represented by an Authorized Person, and may be represented by counsel. In addition, each party may, with permission of the mediator, bring with him, her, or them any additional persons who are needed to respond to questions, contribute information, and participate in the negotiations.
The mediator shall advise the parties in writing of the format for the meeting or meetings. If the mediator believes it will be useful, after reviewing the position papers, if any, the mediator shall give both himself or herself and the Authorized Persons an opportunity to hear an oral presentation of each party’s views on the matter in dispute. The mediator shall assist the Authorized Persons to negotiate a resolution of the matter in dispute, with or without the assistance of counsel or others. To this end, the mediator is authorized both to conduct joint meetings and to attend separate private caucuses with the parties.
To the extent permitted by law, all mediation sessions will be strictly private. The mediator, subject to applicable law, must keep confidential all information learned unless specifically authorized by the party from which the information was obtained to disclose the information to the other party. The parties commit to participate in the proceedings in good faith with the intention of resolving the dispute if at all possible.
The parties agree to participate in the mediation procedure to its conclusion as set forth in this section. The mediation may be concluded: (1) by the signing of a settlement agreement by the parties, (2) by the mediator’s declaration that the mediation is terminated, or (3) by a written declaration of either party, no earlier than at the conclusion of a full day’s mediation, that the mediation is terminated. Even if the mediation is terminated without resolving the dispute, the parties agree not to terminate negotiations and not to begin any legal action or seek another remedy before the expiration of five (5) business days following the mediation. A party may begin arbitration within this period only if the arbitration might otherwise be barred by an applicable statute of limitations or in order to request an injunction from a Court of competent jurisdiction to prevent irreparable harm.
The fees and expenses of the mediator must be shared equally by the parties. The mediator may not later serve as a witness, consultant, expert or counsel for any party with respect to the dispute, or any related or similar matter in which either of the parties is involved.
The mediation procedure is a compromise negotiation or settlement discussion for purposes of federal and state rules of evidence. The parties agree that no stenographic, visual or audio record of the proceedings may be made. Any conduct statement, promise, offer, view or opinion, whether oral or written, made in the course of the mediation by the parties, their agents or employees, or the mediator, is confidential, to the extent permitted by law, and shall be treated as privileged. No conduct, statement, promise, offer, view or opinion made in the mediation procedure is discoverable or admissible in evidence for any purpose, not even impeachment, in any proceeding involving either of the parties. However, evidence that would otherwise be discoverable or admissible will not be excluded from discovery or made inadmissible simply because of its use in the mediation.
Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations or mediation, any dispute (except those Disputes expressly excluded below), controversy, or claim between you and/or any of your Related Parties, on the one hand, and Bahia Bowls Franchising and/or any of Bahia Bowls Franchising’s Related Parties, on the other hand, will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect, which are available at the AAA website: www.adr.org, by one (1) arbitrator. The arbitrator shall be an attorney with substantial experience in commercial law. If proper notice of any hearing has been given, the arbitrator will have full power to proceed to take evidence or to perform any other acts necessary to arbitrate the matter in the absence of any party who fails to appear.
In connection with any arbitration proceeding, each party will submit or file any claim which would constitute a compulsory counterclaim (as defined by the then-current Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any such claim which is not submitted or filed in such proceeding will be barred, to the extent permitted by law.
Any arbitration must be on an individual basis and the parties, and the arbitrator will have no authority or power to proceed with any claim as a class action, associational action, group action or otherwise to join or consolidate any claim with any claim or any other proceeding involving third parties. The arbitration must take place in Lee County, Estero Florida, or at such other location as Bahia Bowls Franchising designates.
The arbitrator must follow the law and not disregard the Terms. The arbitrator may not consider any settlement discussions or offers that might have been made by either you or Bahia Bowls Franchising. The arbitrator may not, under any circumstance: (a) stay the effectiveness of any pending termination of the Terms, (b) assess punitive or exemplary damages, (c) certify, conduct or permit a class, group or a consolidated action, or (d) make any award which extends, modifies or suspends any lawful provision of the Terms. The arbitrator will have the right to make a determination as to any procedural matters as would a court of competent jurisdiction be permitted to make in the State of Florida in which the main office of Bahia Bowls Franchising is located. The arbitrator will also decide any factual, procedural, or legal questions relating in any way to the dispute between the parties, including, but not limited to, any decision as to whether this section is applicable and enforceable as against the parties, subject matter, timeliness, scope, remedies, unconscionability, and any alleged fraud in the inducement.
The arbitrator can issue summary orders disposing of all or part of a claim and provide for equitable and/or interim/final relief. Each party consents to the enforcement of such orders by any Florida court having competent jurisdiction.
The arbitrator will have subpoena powers limited only by the laws of the State of Florida.
The parties may ask that the arbitrator limit discovery to the greatest extent possible consistent with basic fairness in order to minimize the time and expense of arbitration. The parties to the dispute will otherwise have the same discovery rights as are available in civil actions under the laws of the State of Florida.
All other procedural matters will be determined by applying the statutory common laws and rules of procedure that control a court of competent jurisdiction in the State of Florida.
Other than as may be required by law, the entire arbitration proceedings (including but not limited to, any rulings, decisions or orders of the arbitrator), will remain confidential and will not be disclosed to anyone other than the parties to these Terms.
The judgment of the arbitrator on any preliminary or final arbitration award will be final and binding and may be entered in any Estero Florida court having competent jurisdiction.
Bahia Bowls Franchising reserves the right, but has no obligation, to advance your share of the costs of any arbitration proceeding in order for such arbitration proceeding to take place and by doing so will not be deemed to have waived or relinquished Bahia Bowls Franchising’s right to seek recovery of those costs against you.
The Arbitrator shall render a reasoned award unless otherwise requested by the parties. If Bahia Bowls Franchising requests a more detailed award, i.e., “findings of fact and conclusions of law,” the parties shall evenly split the excess cost above the cost required for a reasoned award. However, if You request an award more detailed than a reasoned award, i.e., “findings of facts and conclusions of law,” You shall bear the entire additional cost required for such award, which cost is above the cost for a reasoned award.
If legal action or arbitration is necessary, including any motion to compel arbitration, or action on appeal, to enforce the Terms, or for violation thereof, Bahia Bowls Franchising will be entitled to recover reasonable compensation for preparation, investigation costs, court costs, arbitral costs, and reasonable accountants, attorneys, attorneys’ assistants, and expert witness fees incurred by Bahia Bowls Franchising. Further, if Bahia Bowls Franchising is required to engage legal counsel in connection with any failure by you to comply with the Terms, you shall reimburse Bahia Bowls Franchising for any of the above-listed costs and expenses incurred by Bahia Bowls Franchising, regardless of whether Bahia Bowls Franchising files or compels mediation, arbitration or litigation. Should Bahia Bowls Franchising prevail in any arbitration, the Arbitrator shall require you to pay all expenses of Arbitration, as well as Bahia Bowls Franchising’s attorneys’ fees and costs.
Except as expressly provided to the contrary herein, each portion, section, part term, and/or provision of the Terms shall be considered severable, and if for any reason, any section, part, term, and/or provision herein is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by a court or agency having valid jurisdiction, such shall not impair the operation of or have any other effect upon, such other portions sections parts terms, and/or provisions of the Terms as may remain otherwise intelligible, and the latter shall continue to be given full force and effect and bind the parties hereto, and said invalid portions, sections, parts, terms, and/or provisions shall be deemed not to be a part of the Terms.
THE PARTIES HERETO AND EACH OF THEM KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY AGREE AS FOLLOWS:
Jury Trial. The parties hereto and each of them EXPRESSLY WAIVE(S) THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN ANY ARBITRATION, ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, FOR ANY CLAIMS RELATING DIRECTLY OR INDIRECTLY TO THE TERMS, THE EVENTS LEADING UP TO THE DISPUTE, OR THE BUSINESS RELATIONSHIP RELATING TO THE TERMS, WHETHER BROUGHT IN STATE OR FEDERAL COURT, WHETHER BASED IN CONTRACT THEORY, NEGLIGENCE OR TORT, AND REGARDLESS OF WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING. This waiver is effective even if a court of competent jurisdiction decides that the arbitration provision in this section is unenforceable. Each party acknowledges that it has had full opportunity to consult with counsel concerning this waiver, and that this waiver is informed, voluntary, intentional, and not the result of unequal bargaining power.
In the event the arbitration clause set forth in this section is found to be inapplicable or unenforceable, and subject to Bahia Bowls Franchising’s rights, the following provision shall govern: The parties hereby expressly agree that the United States District Court for the District of Estero Florida, or if such court lacks subject matter jurisdiction, the Lee County Superior Court, shall be the exclusive venue and exclusive proper forum in which to adjudicate any case or controversy arising out of or related to, either directly or indirectly, the Terms, ancillary agreements, or the business relationship between the parties. The parties further agree that, in the event of such litigation, they will not contest or challenge the jurisdiction or venue of these courts. You acknowledge that this Agreement has been entered into in the State of Florida and that you are to receive valuable and continuing services emanating from Bahia Bowls Franchising’s headquarters in Estero Florida. Without limiting the generality of the foregoing, the parties waive all questions of jurisdiction or venue for the purposes of carrying out this provision. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms.
In no event shall any dispute brought by either party related in any way to the Site be commenced after the applicable statute of limitations has lapsed.
Restrictions
The Parties agree that any arbitration shall be limited to the dispute between the parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Mediation and Arbitration
The Parties agree that the following disputes are not subject to the above provisions concerning mediation or binding arbitration: (a) any disputes seeking to enforce or protect the intellectual property rights of Bahia Bowls Franchising; (b) any dispute related to, or arising from Bahia Bowls Franchising’s allegations against you for theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim by Bahia Bowls Franchising for injunctive relief.
Bahia Bowls Franchising shall be entitled, subject to applicable law, with a bond of not more than $5,000, to the entry of temporary, preliminary, and permanent injunctions, and orders of specific performance, enforcing the provisions of the Terms in any court of competent jurisdiction relating to: (a) your, and/or any of your related parties, use of the Marks. If Bahia Bowls Franchising secures any such injunction (i.e. temporary restraining order, preliminary injunction, or permanent injunction) or order of specific performance, you agree to pay to Bahia Bowls Franchising an amount equal to the aggregate of Bahia Bowls Franchising’s costs of obtaining such relief including, without limitation, reasonable attorneys’ fees, costs of investigation and proof of facts, court costs, other litigation expenses, travel and living expenses, and any damages incurred by Bahia Bowls Franchising as a result of the breach of any such provision.
You agree that if Bahia Bowls Franchising can demonstrate to a court of competent jurisdiction that there is a substantial likelihood of your breach or threatened breach of any of the terms of the Terms, Bahia Bowls Franchising will be entitled to an injunction restraining the breach or to a decree of specific performance, without showing or proving any actual damage and without the necessity of posting bond or other security, any bond or other security being waived hereby. Bahia Bowls Franchising has the exclusive right to seek relief pursuant to this section in a court of competent jurisdiction as defined above or any other court of competent jurisdiction. Notwithstanding, if any Court of competent jurisdiction, as described herein, determines that a bond or other security is required, you agree that you will not seek bond or security in excess of $5,000 and, in fact, will oppose any effort by a Court to impose a bond or security in excess of $5,000.
16. CORRECTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
17. DISCLAIMER
THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES WITH RESECT TO SALE OF GOODS
BAHIA BOWLS FRANCHISING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SALE OF GOODS ON THE BAHIA BOWLS FRANCHISING SITE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE QUALITY OF THE GOODS SOLD BY BAHIA BOWLS FRANCHISING. THE GOODS SOLD ON THE SITE ARE BEING SOLD ON AN AS IS BASIS; YOU (THE BUYER) HEREBY AGREE TO BEAR THE ENTIRE RISK AS TO THE QUALITY OF THE GOODS SOLD; SHOULD THE GOODS PROVE DEFECTIVE OR OTHERWISE UNFIT FOLLOWING THEIR PURCHASE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY REPAIR AND NOT BAHIA BOWLS FRANCHISING OR OUR MANUFACTURER, OR OUR DISTRIBUTOR, OR OUR RETAILER.
18. LIMITATIONS OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, NEITHER US, NOR OUR DIRECTORS, EMPLOYEES, NOR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE EXTENT PERMITTED BY LAW , IF ANY, BY YOU TO US. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree that fulfillment of any and all of our obligations written in the Terms or based on any oral communications which may be ruled to be binding in a court of law, shall be Bahia Bowls Franchising’s sole responsibility and none of its agents, representatives, nor any individuals associated with it shall be personally liable to You for any reason.
19. INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third-party due to or arising out of: (1) use of the Site; (2) breach of these Terms; (3) any breach of your representations and warranties set forth in these Terms; (4) your violation of the rights of a third-party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any other user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
The above Limitations of Liability section shall not apply with respect to: (a) your obligation to indemnify Bahia Bowls Franchising pursuant to any provision of the Terms, and/or (b) any claims Bahia Bowls Franchising brings against you for unauthorized use of the Marks, unauthorized use or disclosure of any confidential information, unfair competition and any other cause of action under the Lanham Act and Bahia Bowls Franchising shall be entitled to receive an award of multiple damages, attorneys’ fees and all damages as provided by law.
Further, the parties hereto and each of them EXPRESSLY AGREE(S) THAT IN THE EVENT OF ANY FINAL DETERMINATION ADJUDICATION OR APPLICABLE ENACTMENT OF LAW THAT PUNITIVE MULTIPLE AND/OR EXEMPLARY DAMAGES MAY NOT BE WAIVED, ANY RECOVERY BY ANY PARTY IN ANY ARBITRATION OR OTHER FORUM SHALL NEVER EXCEED TWO (2) TIMES ACTUAL DAMAGES, except that BAHIA BOWLS FRANCHISING may recover more than two (2) times its actual damages if you commit acts of willful trademark infringement or otherwise violate the Lanham Act, as provided by law.
20. USER DATA
You must read and understand the Privacy Policy before continuing to use the Site. We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Please refer to our Privacy Policy for more information regarding the data collected and stored, and the measures implemented to protect this information. Although we perform regular routine backups of data, you are also responsible for all data that you transmit or that relates to any activity you have undertaken using the Site.
21. ELECTRONIC COMMUNICATIONS, TRANSACTIONS,AND SIGNATURES
Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS,AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
22. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the California Department of Consumer Affairs Consumer Information Center in writing at 1625 North Market Blvd., Suite N112, Sacramento, California 95834 or by telephone at (800) 952-5210 or 1-800-735-2929 (TTY).
23. MISCELLANEOUS
These Terms and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment, or agency relationship created between you and us as a result of these Terms or use of the Site. You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
No delay, waiver, omission or forbearance on the part of Bahia Bowls Franchising to exercise any right, option, duty, or power arising out of any breach of default by you under any of the terms, provisions, covenants, or conditions hereof shall constitute a waiver by Bahia Bowls Franchising to enforce any such right, option, duty, or power as against you or as to subsequent breach or default by you. Subsequent acceptance by Bahia Bowls Franchising or any payments due to it hereunder shall not be deemed to be a waiver by Bahia Bowls Franchising of any preceding breach by you of any terms, provisions, covenants, or conditions of the Terms.
24. CONTACT US
In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at:
Bahia Bowls Franchising
20301 Grand Oak Blvd
Suite 118-24
Estero Florida 33928
United States