Terms of Use

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS, AS DETAILED IN SECTION 12. THIS AGREEMENT IS ALSO SUBJECT TO CERTAIN DISCLAIMERS AND LIMITATIONS OF LIABILITY, AS FURTHER DETAILED IN SECTIONS 10 AND 11.

NO PURCHASE NECESSARY TO ENTER OR WIN. A PURCHASE OR PAYMENT OF ANY KIND WILL NOT INCREASE YOUR CHANCES OF WINNING.


PickFun Inc. (“PF”) is pleased to provide you its live prediction gaming app located at pick.fun and its subdomains (the “Site”) – which include all of the text, images, audio, code, and other material they contain or provide and all the products, tools, features, contests and services they provide. The Site and any other features, tools, materials, or other services (including co-branded or affiliated services) offered from time to time by PF are referred to here as the “Services.” These Terms of Use (“Terms”) govern your use and PF’s provision of the Services.  Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users, and others who access or use the Services.

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES: 

By entering, accessing, browsing, submitting information to, or otherwise using the Services, or clicking to accept or agree to these Terms where that option is made available, you (1) accept and agree to each of these Terms below; (2) consent to the collection, use, disclosure and other handling of information as described in PF’s Privacy Policy; and (3) accept and agree to any additional terms, rules, and conditions of participation for particular Services offered by PF from time to time. 


IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE SERVICES. 


1. Acceptance of Terms

This is a contract between you and PF, a Delaware corporation.  You must read and agree to these Terms before using the Services.  If you do not agree, you may not use the Services.  These Terms describe the limited basis on which the Services are available and supersede prior agreements or arrangements.

Except for Section 11, providing for binding arbitration and waiver of class action rights, PF reserves the right, at its sole discretion, to modify or replace, in whole or in part, these Terms at any time. The most current version of these Terms will be posted on our Site. You shall be responsible for reviewing and becoming familiar with any such modifications. If a revision to the Terms, in our sole discretion, is material, we will notify you by contacting you through the email address associated with your account. Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms as modified. If you do not agree to any change to these Terms, you must discontinue using the Services.  PF’s customer service representatives are not authorized to modify any provision of these Terms, either verbally or in writing.

PF may immediately terminate this contract with respect to you, including your access to the Services. Cause for such termination shall include, but is not limited to: breaches or violations of these Terms or other incorporated agreements or guidelines; requests by law enforcement or other government agencies; a direct request by you; discontinuance or material modification to the Services, or any part thereof; unexpected technical or security issues or problems; and, extended periods of inactivity. Absent a request from you, PF does not intend to terminate your account without good cause; however, you agree that any unilateral termination of the account by PF is ultimately a decision vested in PF’s sole discretion.


2. Eligibility

PF’s competitions are void where prohibited. You hereby represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. 

To be eligible to register for the Services, enter any contest on the Site, or win any offered prizes, you must meet all of the following conditions and hereby represent and warrant that: 

  • You are at least thirteen (13) years of age;

    • If you are a deemed a minor in your state of residence (“Minor”), you must have the consent of your parent or legal guardian to use the Services, including entering into any contest. Proof of parental or guardian consent may be required at any time.

  • You are a legal resident of the United States of America and physically located in one of the fifty (50) states or the District of Columbia at the time of entering any game or contest on the Site;

  • You are not a member, officer, employee or agent of PF;

  • You are not a spouse, child, brother, sister or parent, residing as a member of the same household or in the principal place of abode, of any member, officer, employee or agent of PF;

  • You are not an employee or operator of another fantasy sports or prediction gaming website that charges entrance fees or offers cash prizes;

  • You do not, by virtue of affiliation with another company operating in the fantasy sports or prediction gaming industry, have access to that company’s pre-release, non-public, or confidential data about fantasy sports or prediction gaming contest-related information;

  • You are not listed on any U.S. Government list of prohibited or restricted parties;

  • You abide at all times by these Terms and any other agreements between you and PF regarding your use of the Services; and 

  • You are not subject to backup withholding tax because: (a) you are exempt from backup withholding, or (b) you have not been notified by the Internal Revenue Service (IRS) that you are subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified you that you are no longer subject to backup withholding. 

Additionally, athletes, coaches and other team management, team support personnel, and team owners are not eligible to participate in contests in the sport or sports with which they’re associated. Team owners, referees, league employees, sports commissioners, and other individuals, who through an ownership interest or game-related employment can influence the gameplay, are also not eligible to participate in contests in the sport or sports with which they’re associated.

If PF determines that you do not meet the eligibility requirements of this section, then you are not authorized to use the Services. PF reserves the right to request proof of age or identity, or to verify eligibility conditions and potential winning entries, prior to awarding any prize. In addition to any rights that PF may have in law or equity, if PF otherwise determines that you do not meet the eligibility requirements of this section, PF further reserves the right to terminate your account, withhold or revoke the awarding of any prizes associated with your account, or limit your ability to withdraw funds from your account. In such a situation, PF may pay out any withheld or revoked prizes to the other entrants in the relevant contest in a manner consistent with the prize structure of the contest, to be precisely determined by PF in its sole discretion. PF also reserves the right to withhold revoked prizes to use in furtherance of its fraud prevention or anti-money laundering efforts.  


3. Conditions of Participation

Registration and Accounts

In order to use certain features of the Services, including participating in any contests, you must register and set up an account with PF. By registering as a user of the Services, you agree to provide and maintain accurate, current and complete information about yourself including but not limited to your name, age, and address. Any registration information collected by PF will be held subject to our Privacy Policy. 

You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness. You also may not use a proxy server to engage with PF for any means, including for the purpose of misrepresenting your location. You agree that PF may take steps to verify the accuracy of information you provide, including your age, location, and contact information, prior to awarding any prizes. If your account information is not accurate, not current, or incomplete, or if PF has reasonable grounds to believe that your account information is not accurate, not current, or incomplete, PF, in its sole discretion, may deny you access to certain Services and areas of the Site requiring registration. PF, acting reasonably, reserves the right to not open an account for you. 

You may open, maintain, use and control only one account on the Services. For avoidance of doubt, users may not “co-own” accounts on the Services. In the event PF determines you have opened, maintained, used or controlled more than one account, PF reserves the right to suspend or terminate any or all of your accounts and withhold or revoke the awarding of any prizes. 

If you create a username that PF deems, in its sole discretion, to be abusive, defamatory, harassing, hateful, indecent, objectionable, offensive, or vulgar, PF reserves the right to cancel any of your contest entries and block your account from any future activity.

PF may suspend or terminate your account and your ability to use the Services if you engage in, encourage or advocate for illegal conduct, or if you fail to comply with any of these Terms or supplemental terms. 

Account Passwords and Security

You are responsible for taking reasonable steps to maintain the confidentiality of information related to your account, including your username and password, and you are responsible for all activities under your account that you can reasonably control.  You agree to promptly notify PF of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or the Services. 

The security, integrity and confidentiality of your personal information is extremely important. Accordingly, PF has implemented technical, administrative and physical security measures that are designed to protect your information from unauthorized access, disclosure, use, and modification. Nevertheless, you understand and agree that no network is 100 percent secure and that PF is not responsible for any data breaches, “hacking” or other unauthorized access. 

Communications and Information Practices

As a result of your registration for the Services or entrance into certain fantasy sports contests, you may receive certain commercial communications from PF or its business partners. You understand and agree that these communications are part of your registration and/or contest entrance, and that, to the extent required by law, you may opt out of receiving these communications at any time by either using the unsubscribe functionality, where available, or sending an email to admin@pick.fun. Following an opt-out, PF and its business partners may still communicate with you via email or other correspondence to the extent permitted by applicable law. 

Taxation

Each year all winners who have won $600 or more over the previous year must provide updated address and social security details to PF. These details will be used to allow PF to comply with tax regulations and may be shared with appropriate tax authorities. 

You, not PF, are responsible for filing and paying applicable state and federal taxes on any winnings. PF does not provide tax advice, nor should any statements in this agreement or on the Service be construed as tax advice. 

Publicity 

By entering any contest on the Site, you consent to PF’s, and its service providers’ and business partners’, use of your name, voice, likeness, location and photograph in connection with the development, production, distribution and/or exploitation (including marketing and promotion) of the selected contest and other PF contests and PF generally, unless otherwise prohibited by law. PF and its business partners reserve the right to make public statements about the entrants and winner(s), on-air, on the Internet, or otherwise, prior to, during, or following the contest. You agree that PF may announce any winner’s name on-air, on the Site, or at or on any other location or medium at any time in connection with the marketing and promotion of PF, or other contests or games operated by PF, or PF’s business partners and their products or services. You agree that participation in and (where applicable) the winning of a prize in connection with a contest constitute complete compensation for your obligations under this paragraph, and you agree not to seek to charge a fee or impose other conditions on the fulfillment of these obligations. The rules specific to certain contests may contain additional publicity obligations or may require a written signature on a separate publicity waiver.


4. Contest Rules

Contests that you enter on the Services may have supplemental rules and conditions to which you are subject, but the following general rules apply, absent contrary terms in any supplemental rules or conditions for those contests. 

Contest of Skill and Odds of Winning

You agree and acknowledge that PF’s fantasy sports contests are designed to test the contest entrants’ respective proficiency in exercising their judgment, knowledge, and reasoning, as applied within the constraints of each contest’s rules, relating to professional sports (“skill”). You therefore further agree and acknowledge that the outcome of each contest is predominantly determined by the contest entrants’ relative skill. Moreover, because the skill of the entrants to PF’s contests may vary, the odds of winning may also vary. The number of entrants in a given contest may also affect the odds of winning. 

Entries

Once you have registered for an account, you may enter contests on the Site, subject to certain exclusions and limitations set forth in particular contests’ rules and/or eligibility requirements. It is your responsibility to ensure that you are legally eligible to enter any contests offered on the Site under any laws applicable to you in your jurisdiction of residence or otherwise.

PF offers a number of different types of contests.  Contest scoring and specific rules (collectively, “Official Rules”) may differ from contest to contest. It is your responsibility to review each contest’s Official Rules, as may be modified from time to time, and you agree to abide by those Official Rules. Each contest’s Official Rules are incorporated into these Terms by this reference.

NO PURCHASE NECESSARY TO ENTER OR WIN. A PURCHASE OR PAYMENT OF ANY KIND WILL NOT INCREASE YOUR CHANCES OF WINNING.

PF may disqualify entries that are late, misdirected, incomplete, corrupted, lost, illegible or invalid or containing false information.  You are not allowed to play PF’s contests for entry fees or prizes other than those specified in the contests’ Official Rules. Contest entries are limited to one per person and entries via agents or third parties or the use of multiple identities are not permitted.  Use of automated entries or other programs is prohibited and all such entries will be disqualified.

Information collected from entrants is subject to PF’s Privacy Policy. Participation in any contest constitutes full and unconditional agreement to and acceptance of these Terms and the decisions of PF, which are final and binding. Winning any prize is contingent on fulfilling all requirements set forth herein.

Important Notice: You may be charged for visiting the mobile website in accordance with the terms of your service agreement with your carrier. Please consult your wireless service provider regarding your pricing plan. If your data usage exceeds what is allotted by your data plan, you could be subject to additional fees by your carrier. Please contact your mobile service provider with any questions regarding your bill. Additionally, not all mobile phone providers carry the necessary service to participate. Check your phone capabilities for specific Internet instructions. 

Contest Term

The start, term, and length of each individual contest will depend on the professional sport related to that contest, generally commencing and ending either on a single day, over the course of a week, or over the course of a full professional sports league’s regular season. The start, term, and length of each individual contest will be explicitly stated on its respective Contest Schedule page and/or in the contest’s Official Rules. 

Results and Prizes

PF, and/or its business partners, awards prizes based on the results of prediction gaming contests. PF offers a number of different types of contests. For each contest, PF announces the prizes in advance of a contest beginning. This information is made available on the Contest Schedule page.

At the conclusion of each contest, the tentative winner(s) are announced (generally by the following day) but remain subject to final verification. The results and winners of each contest will be determined in accordance with the Official Rules governing that contest. Prizes may then be awarded, consistent with each contest’s Official Rules, to eligible winners within a reasonable time after the contest’s conclusion. In the event of a tie, prizes may be divided evenly between the tied entrants, unless otherwise specified. 

Prize calculations are based on the results as of the time when final scoring is tabulated by PF or the third-party that offers, hosts, and/or operates the contest. Once winners are initially announced by PF, the scoring results will not be changed in light of official adjustments made by the professional leagues, though PF reserves the right to make adjustments based on errors or irregularities in the transmission of information to PF from its statistics provider or in its calculation of results. PF, in its sole discretion, also may make adjustments in the event of noncompliance with the Terms. PF has no obligation to delay the awarding of a prize in anticipation of any adjustment, and PF reserves the right to reverse the awarding of prizes in the event of any adjustment. You agree to be bound by any such adjustments and to cooperate with PF’s reasonable efforts to award prizes.

Prizes are not transferable, redeemable for cash or exchangeable for any other prize. In order to award a prize, PF may require your full name, valid mailing address, date of birth, and social security number in order to file the appropriate tax forms at year end. All taxes associated with the receipt or use of any prize are the sole responsibility of winners. PF may also conduct checks for compliance with these Terms, and PF may request additional information before awarding a prize. In the event that the awarding of any prizes to winners of any contest is challenged by any legal authority, PF reserves the right, in its sole discretion, to determine whether or not to award or adjust such prizes. In all disputes arising out of the determination of winners of contests, PF is the sole judge and its actions are final and binding. All prizes are awarded AS IS and WITHOUT WARRANTY OF ANY KIND, express or implied, (including, without limitation, any implied warranty of merchantability or fitness for a particular purpose) by PF.

Notification

Winners are generally posted on the Site after the conclusion of each contest, generally by the following day. Winners may be requested to return via email or regular mail an affidavit of eligibility, a prize claim agreement, a publicity agreement, and/or appropriate tax forms by a specified deadline. If the prize winner is a minor in his or her state of residency, as a condition to receipt of a prize, PF may also require the Minor’s parent or legal guardian to sign and timely submit an affidavit of eligibility, a prize claim agreement, a publicity agreement, and/or appropriate tax forms on behalf of the Minor. In PF’s sole discretion, the prize may be awarded to the Minor’s parent or legal guardian rather than the Minor, which the parent or legal guardian shall then sign all required documents and assume all the responsibilities of the prize winner.  

If such requested documentation is not returned within the specified time period, or if the prize or prize notification is unclaimed or returned as undeliverable, or if the prize winner is not in compliance with these Terms, the winner of the contest may be disqualified and the prize forfeited and awarded to the entrant whose entry received the next highest score, at PF’s discretion.

Cancellation Policy

PF, in its sole discretion, reserves the right to modify, suspend, cancel or terminate a contest, or extend or resume the entry period, without giving advance notice and without restrictions. For example, PF may cancel a contest if it cannot be guaranteed the contest can be carried out fairly or correctly for technical, legal or other reasons; if PF suspects that any person has manipulated entries or results, provided false information or acted unlawfully or unethically; or if the minimum number of contest entries is not met. If PF cancels or terminates a contest, any advertised prizes may, at PF’s sole discretion, be either voided or awarded in any manner it deems fair and appropriate, consistent with laws and regulations governing such contest.

Disqualification Policy

If you engage in conduct PF deems, in its sole discretion, to be improper, unfair, fraudulent or otherwise adverse to the operation of the Services or in any way detrimental to other users, PF may disqualify you from a contest or the entire Services; refuse to award scoring points or prizes and require the return of any prizes; or suspend, limit, or terminate your account. Improper conduct includes, but is not limited to: falsifying personal information, including information, required to use the Services or claim a prize; violating eligibility requirements; accumulating points or prizes through unauthorized methods such as unauthorized scripts or other automated means; tampering with the administration of the Service or trying to in any way tamper with the computer programs associated with the Service; obtaining other entrants’ information or spamming other entrants; abusing the Service in any way; or otherwise violating these Terms. You acknowledge that the forfeiture and/or return of any prize shall in no way prevent PF from informing the relevant authorities, and/or pursuing criminal or civil proceedings in connection with such conduct.


5. User Conduct

As a condition of use, you promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by PF. By way of example, and not as a limitation, you agree not to:

  • abuse, harass, impersonate, intimidate or threaten other PF users;

  • post or transmit, or cause to be posted or transmitted, any content that is infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of any third party;

  • creating, disseminating or transmitting files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, publicity or other intellectual property rights of PF, any Users, or any third party;

  • post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any User;

  • create or submit unwanted email (“Spam”) to any other Users;

  • submit comments linking to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content;

  • post, email, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

  • use any robot, spider, scraper, sniping software or other automated means to access the Service for any purpose (except for RSS feed access) without PF’s express written permission. Additionally, you agree that you will not: (1) take any action that imposes, or may impose in PF’s sole discretion an unreasonable or disproportionately large load on PF’s infrastructure; (2) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (3) bypass any measures PF may use to prevent or restrict access to the Service;

  • use unauthorized scripts or other automated technology to unfairly alter your chances of winning; 

  • advertise to, or solicit, any user to buy or sell any products or Services, or use any information obtained from the Service in order to contact, advertise to, solicit, or sell to users without their prior explicit consent;

  • circumvent or attempt to circumvent any of these Terms, the Services or any contest offered through the Site, or otherwise interrupt or attempt to interrupt the operations of the Site;

  • sell or otherwise transfer your profile; or

  • attempt to influence the play in any sporting event from which athletes are available for selection in contests in which you are involved or in which you have a direct or indirect interest.

For any violations of the above user conduct terms or upon receipt of claims or allegations from other users, third parties, or authorities, you acknowledge and agree that PF, in its sole discretion, may disqualify you from a contest; void your deposits or winnings; refuse to award prizes or require the return of any prizes; and/or suspend, limit, or terminate your account and any and all current or future use of the Services (or any portion thereof). PF also reserves the right to inform the relevant authorities, and/or pursue criminal or civil proceedings in connection with such conduct.

To report violations of these Terms, please contact us at admin@pick.fun 


6. User Generated Content

The Services may allow you to communicate, submit, upload or otherwise make available text, images, audio, video, competition entries or other content (“User Generated Content”), which may be accessible and viewable by the public.  You may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.

PF does not claim ownership to your User Generated Content; however, you grant PF a non-exclusive, sub-licensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Services and on third-party sites and platforms such as Facebook, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity.

You represent and warrant that your User Generated Content conforms to these Terms and that you own or have the necessary rights and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize PF to use and exploit, your User Generated Content in all manners contemplated by these Terms.  You agree to indemnify and hold PF and its subsidiary and affiliated companies, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against PF by any third party arising out of or in connection with PF’s use of your User Generated Content.  You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against PF or its licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.

To the extent that PF authorizes you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of its copyrighted works, PF grants you a non-exclusive license to create a derivative work using its copyrighted works as required for the purpose of creating the materials, provided that such license shall be conditioned upon your assignment to PF of all rights in the work you create.  If such rights are not assigned to PF, your license to create derivative works using PF copyrighted works shall be null and void.

PF has the right but not the obligation to monitor, screen, post, remove, modify, store and review User Generated Content or communications sent through a Service, at any time and for any reason, including to ensure that the User Generated Content or communication conforms to these terms, without prior notice to you.  PF is not responsible for, and does not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.


7. Intellectual Property

Ownership

Unless otherwise noted, all text, content and documents in the Services, any names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing in the Services, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works in the Services (“Our Content”) are owned by PF or used with permission or under license from a third party (hereinafter collectively referred to as the “Owner”) and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between PF and you, all right, title and interest in and to the Content will at all times remain with PF and/or its Owners. All brand names, product names, titles, slogans, logos, or service names and other marks used in the Services, are registered and/or common law trade names, trademarks or service marks PF. PF does not transfer ownership, license, or title to any portion of the Content to you.


Submissions and Unsolicited Ideas Policies

PF encourages your feedback, in the form of reviews, comments, and suggestions or recommendations for modifications, improvements or changes to the Services or the Site that you may choose in your sole discretion to provide PF from time to time (“Feedback”). When you provide Feedback, you grant PF, under all right, title and interest in and to the Feedback, a non-exclusive, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use that Feedback for PF’s commercial or other use and to incorporate it into the Site or other products or services. In connection with anything you submit to PF – whether or not solicited by PF – you agree that creative ideas, suggestions or other materials you submit are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and PF in any way, and that you have no expectation of review, compensation or consideration of any type.


8. Third-Party Services and Content

The Services may integrate, be integrated into, link to, or be provided in connection with third-party websites, applications, and/or other platforms (collectively, “Third-Party Sites”). PF does not control those Third-Party Sites. You should read the terms of use agreements and privacy policies that apply to such Third-Party Sites. Descriptions of, or references or links to, Third-Party Sites within the Services do not imply endorsement of those Third-Party Sites. You agree that PF will not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as a result of your activities related to or conducted or taken on or in connection with Third-Party Sites. 

PF also uses third-party electronic payment processors and financial institutions (“Payment Processors”) to process deposits and withdrawals into and from your account. All payments into your account must be made from a payment source on which you are the named account holder. The information that we provide to and receive from these Payment Processors, and the manner in which such information is used and disclosed, is described in further detail in the Privacy Policy. You irrevocably authorize us, as necessary, to instruct such Payment Processors to handle deposits and withdrawals from your account and you irrevocably agree that PF may give such instructions on your behalf in accordance with your requests as submitted through the Site, or via instructions sent to admin@pick.fun


9. Indemnity

You agree to release and to indemnify, defend and hold harmless PF and its parents, subsidiaries, affiliates and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs) claims or actions of any kind whatsoever arising or resulting from your use of the Service; your violation of these Terms; your receipt, ownership, use or misuse of any prize; and any of your acts or omissions that implicate publicity rights, defamation or invasion of privacy. PF reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with PF in the defense of such matter.

10. Limitations on Liability

YOU ACKNOWLEDGE AND AGREE THAT PF, INCLUDING ITS AFFILIATES, OFFICERS, DIRECTORS AND/OR REPRESENTATIVES, SHALL NOT BE LIABLE TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF PF HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICES; THE USE OR THE INABILITY TO USE THE SITE OR SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICE; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; ANY INCORRECT, ILLEGIBLE, MISDIRECTED, STOLEN, INVALID OR INACCURATE ENTRY INFORMATION; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THOSE THAT DO NOT PERMIT AN ENTRANT TO PARTICIPATE IN THE SERVICE); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE SITE OR SERVICE OR ANY OTHER WEBSITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ENTRIES, IMAGES OR OTHER CONTENT OF ANY KIND; DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO THE SITE OR SERVICE. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PF’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 PAID, IF ANY, BY YOU TO FANDUEL FOR GENERAL USE OF THE SITE OR SERVICE DURING THE TERM OF YOUR REGISTRATION FOR THE SITE, NOT INCLUDING ANY ENTRY FEES FOR CONTESTS COMPLETED PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE CLAIM. 

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.


11. Disclaimers

PF DOES NOT REPRESENT OR WARRANT THAT ACTIONS YOU TAKE RELATED TO THE SERVICES ARE LAWFUL IN ANY PARTICULAR JURISDICTION, AND IT IS THEREFORE INCUMBENT UPON YOU TO KNOW THE LAWS THAT PERTAIN TO YOU WITHIN YOUR JURISDICTION AND TO ACT LAWFULLY AT ALL TIMES WHEN USING THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT PF, INCLUDING ITS AFFILIATES, OFFICERS, DIRECTORS AND/OR REPRESENTATIVES, SHALL NOT BE HELD LIABLE FOR ANY ACTIVITIES TAKEN BY YOU THAT MAY VIOLATE ANY LAWS TO WHICH YOU ARE SUBJECT.

PF MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE COMPLETENESS, ACCURACY, CURRENCY, OR RELIABILITY OF ANY INFORMATION OR CONTENT PROVIDED BY A THIRD PARTY THAT APPEARS ON THE PF SITE OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT PF, INCLUDING ITS AFFILIATES, OFFICERS, DIRECTORS AND/OR REPRESENTATIVES, SHALL NOT BE HELD LIABLE FOR ANY ERRORS, OMISSIONS, INACCURACIES, DELAYS, OR FAILURES IN PERFORMANCE RESULTING FROM SUCH INFORMATION AND CONTENT, OR FROM CAUSES BEYOND PF’S REASONABLE CONTROL. 

YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND SERVICES. THE SITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  PF DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS.


12. Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING A RIGHT TO FILE A LAWSUIT IN COURT. 

Initial Dispute Resolution

You shall contact PF at admin@pick.fun if you have any concerns regarding the Services. You and PF (collectively, the “Parties”) shall then use their best efforts following this initial contact to settle any dispute, claim, question, or disagreement and engage in good faith negotiations, which shall be a condition to either party initiating a lawsuit or arbitration. 


Binding Arbitration

If the Parties do not reach an agreed upon solution within a period of thirty (30) days following initial contact under the Initial Dispute Resolution provision above, then either Party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the Parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. 

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, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. 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 written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, PF will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, PF will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases. 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.


Location

If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents in Canada, arbitration shall be initiated in Cook County, Illinois, United States of America, and you and PF agree to submit to the personal jurisdiction of any federal or state court in Cook County, Illinois, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.


Class Action Waiver

The Parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND PF 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 OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the Parties shall be deemed to have not agreed to arbitrate disputes.


Exception - Litigation of Intellectual Property and Small Claims Court Claims

Notwithstanding the Parties' decision to resolve all disputes through arbitration, either Party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either Party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.


30-Day Right to Opt Out

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: PickFun Inc.  1251 W. Columbia Ave / Apt. 1F   Chicago, IL  60626   Attn: Dispute Resolution     The notice must be sent within 30 days of initial contact or your first use of the Services, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, PF also will not be bound by them.


Changes to this Section

PF will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.


13. Additional Provisions

Mobile Application

These Terms shall also apply to the use of the PF’s mobile application (“App”). These Terms are intended to be in addition to the End User License Agreement (found here: https://www.apple.com/legal/internet-services/itunes/appstore/dev/stdeula/) for the App, and to the extent any of these Terms conflict with the End User License Agreement, these Terms shall be deemed to apply and the conflicting provision in the End User License Agreement shall not be applicable. Any reference in these Terms to the Site and/or Services provided by PF shall also be deemed to include the App.


No Third Party Beneficiaries 

You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to the Terms.


Claims and Copyright Infringement

Notifications of claimed copyright infringement and counter notices should be addressed to admin@pick.fun, or via physical mail to :

PickFun Inc. 1251 W. Columbia Ave / Apt. 1F Chicago, IL  60626  Attention: DMCA Designated Agent, Michael Schulte 

PF will respond expeditiously to claims of copyright infringement committed using the Services that are reported to its designated agent, identified above, in accordance with the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”) or, as applicable, other laws. With respect to Services hosted in the United States, these notices must include the required information set forth in the DMCA.


Force Majeure

The failure of PF to comply with any provision of these Terms due to what is commonly referred to as an act of God or a hurricane, war, fire, earthquake, terrorism, act of public enemies, actions of government authorities outside of the control of PF (not related to compliance with applicable regulations), or other force majeure event will not be considered a breach of these Terms.


Governing Law and Jurisdiction

These Terms and relationship between you and PF shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. 

For any dispute not subject to arbitration, you and PF agree to submit to the personal and exclusive jurisdiction of and venue in the federal courts of the United States or the courts of the State of Delaware. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.


Severability

If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.


Survival

The provisions of these Terms which by their nature should survive the termination of these terms shall survive such termination.


Waiver

No waiver of any provision of these Terms by PF shall be deemed a further or continuing waiver of such provision or any other provision, and PF’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.


Last updated September 1, 2022