This is a binding agreement between you and FishDonkey, which is owned and operated by FISHDONKEY INC, that governs your access to, and use of the FishDonkey services defined below.
FishDonkey (“FishDonkey”, “we” or “us”) operates www.FishDonkey.com, www.tourneyservices.com and other channels including web and mobile applications, tournament sites and platforms (collectively, the "Site"). The services, content, support, goods and products that FishDonkey provides to you via the Site (collectively, the "Services") are subject to this Agreement as well as any other terms or rules that we may post on the Site and/or present as part of any such Services. Any and all such additional terms and rules are incorporated into this Agreement by this reference. Please read this Agreement carefully as it affects your legal rights and obligations.
By using the Site or any Services, you represent to us that you are at least 18 years old. Use of the Site or any Services by children under the age of 18 years is prohibited, unless an area of the Site specifically states otherwise. Your use of the Site and the Services is subject to your acceptance of and compliance with this Agreement. By using the Site and/or the Services, you accept and agree to be bound by the terms of this Agreement, even if you choose not to read it. If you do not accept all the terms of this Agreement, you should not use (and you have no right to use) the Site or Services, and you should cease any use immediately.
FishDonkey may discontinue the operation of, or prohibit you from accessing or using, the Site or Services (or components thereof) at any time and without liability to FishDonkey, for any reason, including if you violate this Agreement. We may modify this Agreement from time to time. If the Agreement is modified, we will post the updated Agreement on the Site, and your use of the Site after such modification constitutes agreement to the new terms. The Privacy Policy[A1] also applies to your use of the Site and Services
Among other services, software and content that FishDonkey provides on the Site, FishDonkey’s Services include providing an online mobile platform for organizing, operating, and competing in, fishing tournament events. Tournament organizers may provide their own terms and conditions to tournament participants, provided they are not in conflict with this Agreement and do not purport to bind or obligate FishDonkey beyond the terms of this Agreement. Tournament organizers are solely responsible for the tournaments they organize, and FishDonkey has no liability to tournament participants except as expressly provided for in this Agreement.
Use of the Site and Services is provided without charge to tournament organizers. A non-refundable service charge of 2.95% of the tournament entry fee is charged to tournament participants who register through the Site, with the minimum tournament entry fee being $1.00 (USD). All tournament entry fees are collected by FishDonkey and held until five business days after the tournament ends. After five business days, all collected entry fees will be sent to the tournament organizer/host less applicable service charges.
Occasionally due to circumstances beyond FishDonkey’s control, the date, time, and or location of a scheduled tournament event must be changed or canceled. In the event of such a change FishDonkey will have no liability to tournament participants for return or refund of their entry fees. Instead, FishDonkey will use its best efforts to coordinate with the tournament organizer regarding a rescheduled tournament. By using the Site and Services to organize a tournament, you agree that you are solely responsible for any refunds or damages that may become due to tournament participants. As a tournament participant, you acknowledge that FishDonkey is not responsible or liable for the terms, conditions, or results of any tournament organized through the Site or Services, and you agree to look only to the tournament organizer for any applicable refund of your entry fee or other damages.
Except where stated explicitly on the Site, FishDonkey makes no representations or warranties regarding the Service or the quality, features, conditions, rules, prizes, results, or other aspects of any tournament ORGANIZED THROUGH, OR hosted on, the Site. AS BETWEEN FISHDONKEY AND THE TOURNAMENT ORGANIZER, THE TOURNAMENT ORGANIZER IS SOLELY RESPONSIBLE FOR THE RESULTS AND CONSEQUENCES OF THE TOURNAMENTS THEY ORGANIZE AND HOST USING THE SITE AND SERVICES.
Using the Site or Services does not create an employer-employee, principal-agent, joint-venture, franchise, partnership or independent contractor relationship of any type between you and FishDonkey.
We may discontinue some or all of any Software at any time. We may also terminate your right to use any Software at any time, and in such event we may modify it to make it inoperable. You agree to abide by all laws and regulations in effect regarding your use of the Software, including without limitation, its use in connection with any copyrighted content. You may not authorize or assist any third party to do any of the things prohibited in this paragraph.
6.5 License and Release for User-Submitted Content. You hereby grant to FishDonkey an irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, display, perform, and use in any way, your content that is uploaded to the Site as well as all modified and derivative works thereof, in connection with our provision of the Service, including marketing and promotions of the Service. You also hereby grant to FishDonkey the right to authorize others to exercise any of the rights granted to FishDonkey under these Terms of Use. You further hereby grant to FishDonkey the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any content submitted by you without any obligation or compensation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in such user-submitted content, regardless of whether the content is altered or changed in any manner. FishDonkey does not claim any ownership rights in your user-submitted content and nothing in this Agreement is intended to restrict any rights that you may have to use and exploit your content. FishDonkey has no obligation to monitor or enforce your intellectual property rights in or to your content.
If you use any part of the Site or Services that requires a user name or password, you agree to provide us with complete, accurate and current registration information as prompted by the Site. You are solely responsible for maintaining the confidentiality and security of your account, password and computer and phone equipment. You agree to notify FishDonkey immediately if you learn that the security of your account is compromised. FishDonkey reserves the right to take any action that it deems necessary or reasonable to ensure the security of the Site, the Services or your account, including without limitation terminating your account, changing your password or requesting additional information to authorize transactions on your account. Notwithstanding the above, FishDonkey may rely on the authority of anyone accessing your account or using your password. FishDonkey will not be liable to you for any action or inaction of FishDonkey under this “Password and Account Access” provision, any compromise of the confidentiality of your account or password, or any unauthorized access to your account or use of your password. On the other hand, you may be liable for losses incurred by FishDonkey as a result of someone else using your account.
All content and copyrighted and copyrightable materials on the Site, including, without limitation, the text, graphics, pictures, videos, sound files and other files, design, compilation, FishDonkey logo, and the selection, arrangement, organization and magnetic translation thereof ("Materials") are the property of FishDonkey or its third-party licensors and are protected by United States and international copyright laws. FishDonkey or its third-party licensors, own all right, title and interest in and to the Materials, and nothing in this Agreement shall be interpreted to grant a license or ownership interest in or to the Materials. None of the Materials may be copied, in whole or in part, without express written permission by the copyright holder, and all rights are expressly reserved.
All product names and logos, including without limitation FishDonkey™, the FishDonkey logo, and all other marks and logos included on the Site (“Marks”) are registered trademarks or trademarks of FishDonkey or its customers or licensors, and may not be copied, imitated or used as trademarks or otherwise, in whole or in part, without the express prior written permission of FishDonkey or its customers or licensors, as applicable. All rights are expressly reserved, and nothing in this Agreement shall be interpreted to grant a license or ownership interest in or to any of the Marks.
Parties other than FishDonkey may offer software, products and services (collectively, “Third-Party Products”) on or through the Site or Services. Your use of any Third-Party Products that are provided on the Site will be governed by the terms and conditions of a terms of use agreement or an end-user license agreement between you and the service or software provider (any such agreement, a "EULA"). If you choose not to accept a EULA, you must not download or use the third-party software or service. FishDonkey is not a party to any such EULAs and shall not be responsible or liable for their content or any terms, conditions or obligations therein. In the event no EULA is provided for third-party software or services provided on the Site, the terms of this Agreement shall govern the use of such third-party software or services.
Except for information specifically identified as being supplied by FishDonkey, FishDonkey does not control or endorse any information on the Site about Third-Party Products that may be accessed on or through the Site. FishDonkey is not responsible for examining or evaluating, and FishDonkey does not warrant any Third-Party Products or the content of any third-party Web sites or services. FishDonkey does not assume any responsibility or liability for the actions, products, or services of any third parties. You must evaluate and bear all risks associated with the use of any Third-Party Products. You should carefully review their terms of use and all other third party terms.
Except to the limited extent expressly provided in this Agreement, FishDonkey makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites or services accessible by hyperlink from this Site, or third-party Web sites linking to this Site. Such linked Web sites are not under the control of FishDonkey and FishDonkey is not responsible for the content of any such linked Web site. FishDonkey is providing these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement, or adoption by FishDonkey of the Web site or any information contained therein. FishDonkey is not responsible or liable, directly or indirectly, for any damage or loss caused to you by or in connection with such third-party Web sites. When leaving the FishDonkey Site, you should be aware that FishDonkey’ terms and policies no longer govern, and, therefore, you should review the applicable terms and policies, including privacy and data gathering practices, of that Web site.
You hereby release, and shall defend, indemnify, and hold harmless, FishDonkey and its owners, officers, members, managers, directors, shareholders, subsidiaries, joint-ventures, partners, employees, agents, licensors, and licensees from and against any and all claims, actions, suits, proceedings, demands, losses, liabilities, damages, judgments, settlements, penalties, costs, and expenses (including without limitation all reasonable attorneys’ fees), known and unknown, arising out of (i) your use of the Services or Site; (ii) any dispute between you and any other user or users, including, without limitation, any claims brought by tournament participants or sponsors against a tournament organizer; (iii) any violation or breach of this Agreement, or (iv) the infringement by you, or any other user of your username or account, of any intellectual property or right of any person or entity.
If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor 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 debtor."
THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, FISHDONKEY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FISHDONKEY DOES NOT WARRANT THAT THE SITE, THE SERVICES, OR ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE OR FISHDONKEY’S SERVERS, OR ANY EMAIL SENT BY FISHDONKEY, IS ACCURATE, COMPLETE, RELIABLE, TIMELY, UNINTERRUPTED, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR WILL OTHERWISE MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK AND RESPONSIBILITY. FISHDONKEY, ON BEHALF OF ITSELF AND ITS LICENSORS AND CUSTOMERS, MAKES NO WARRANTY OF NON-INFRINGEMENT WITH RESPECT TO THE SITE, SERVICES, ANY CONTENT, OR ANY OTHER MATERIAL.
15. Limitation of Liability.
FishDonkey shall not be liable for any damages of any kind, including, but not limited to, direct, indirect, incidental, punitive, or consequential damages, arising from your use of the Site or Services, or from any information, content, materials, products, or services included on or otherwise made available to you through the Site or Services.
Without limiting the foregoing, FishDonkey recommends that you not use the Site or Services during automobile driving, boat piloting, or other activities that pose a significant risk of accident or injury if conducted while using a mobile device or computer. You acknowledge that any such use is at your sole risk.
FishDonkey will not have any liability to you for usage or other charges related to any device that you use to access the Site or Services, including, without limitation, usage charges for mobile telephones, PDAs, car navigation systems, pagers, and other devices, whether wireless, wireline, internet-enabled or otherwise.
Certain state 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 disclaimers, exclusions or limitations in this Agreement may not apply to you, and you might have additional rights.
FishDonkey respects the intellectual property of others. If you believe that your work has been copied and has been posted to the Site or Services in a way that constitutes copyright infringement, please send a claim to FishDonkey’s Copyright Agent as follows:
FISHDONKEY, INC.
618 N. Owasso Blvd.
Shoreview, MN 55126
The content of your claim should include the following written information:
Upon receiving a claim of copyright infringement, FishDonkey may, at its sole discretion, immediately remove any materials that are the subject of the claim without providing prior notice to the user responsible for such materials. FishDonkey may, at its sole discretion, decide to restore any removed materials depending on the specific facts of a given situation.
17. Notice and Procedure for Making Other Intellectual Property Infringement Claims.
If you believe that your trademark, patent or other intellectual property other than copyright has been infringed by FishDonkey, please provide FishDonkey the following written information:
18. Term and Termination.
This Agreement shall commence on the date you begin using the Site or Services and shall remain in effect for the duration of such use. This Agreement may be terminated at any time by FishDonkey for any reason or for no reason. If you do not agree to the terms and obligations of this Agreement, you must immediately discontinue your use of the Site or Services, and you may not use (and have no right to use) the Site or the Services unless and until you acknowledge your agreement to this Agreement.
19. Governing Law; Mandatory Arbitration; Class Action Waiver.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF TEXAS. YOU AGREE THAT ANY CLAIM OR DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT, THE SITE OR THE SERVICES (“CLAIM”) WILL BE SUBJECT TO THE JURISDICTION OF THE APPLICABLE STATE OR FEDERAL COURTS LOCATED IN TRAVIS COUNTY, TEXAS, USA, AND YOU CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN SUCH COURTS.
20. Assignment; Successors.
This Agreement is fully assignable by FishDonkey, but it is not assignable by you. Each user of the Site or Services must individually agree to this Agreement. Notwithstanding the foregoing, this agreement is binding on, and is enforceable against, any of your successors or assigns.
21. Entire Agreement.
This Agreement constitutes the entire agreement between the Parties with regard to the subject matter contained herein. All prior or contemporaneous agreements, written or oral, between the Parties relating any subject matter covered herein, are hereby superseded by this Agreement.
22. Severability.
The invalidity or unenforceability of any provision within this Agreement shall in no way affect the validity or enforceability of the remainder of this Agreement or any other provision hereof. If any provision is deemed to be invalid or unenforceable, an arbitrator or court, as the case may be, shall make efforts to enforce the remainder of this Agreement to the maximum extent possible.
23. Independent Counsel; Interpretation.
You acknowledge that this Agreement was drafted by counsel for FishDonkey. You represent that you have sought independent legal advice or have waived such right after being given adequate time to seek such advice. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.