These Terms constitute an agreement between you and The Majestic Star Casino LLC (dba Fitz Tunica Casino & Hotel) and its affiliates and franchisees (collectively, “Fitz” or “we” or “us”).
Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and Fitz have against each other are resolved (see Legal Disputes and Arbitration Section below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with the Legal Disputes and Arbitration Section below.
The Fitz Online Services are intended for persons who are 21 or older. If you are not 21, you may not access or use the Fitz Online Services.
Users and Accounts
To use certain Fitz Online Services, such as to access the Players’ Rewards Program, you may need to create an account. If you create an account, you agree you will: (a) create only one account; (b) provide honest, accurate, current and complete information regarding yourself; (c) keep your information updated and accurate; (d) keep your account password private and not share it with others; and (d) notify Fitz if you discover or suspect that your account has been hacked or its security breached.
You agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account. You are responsible for providing the equipment and services that you need to access and use the Fitz Online Services. We do not guarantee that the Fitz Online Services are accessible on any particular equipment or device or with any particular software or service plan.
We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the Fitz Online Services or any component of them and to block or prevent future access to and use of the Fitz Online Services and to delete your account and any related information. Any obligation or liability incurred prior to our termination of your access to the Fitz Online Services will survive such termination.
Personal Use Only
The Fitz Online Services are owned by Fitz and licensed to you for your personal, non-commercial use only. Except as expressly provided in these Terms, you may not copy, distribute, publish, transmit, modify, transmit, publicly display or perform, create derivative works of or otherwise exploit any part of the Fitz Online Services. You may not save or archive a significant portion of the material appearing in or on the Fitz Online Services. All rights not expressly granted herein are reserved by Fitz.
Responsible Use of the Fitz Online Services
You may use the Fitz Online Services for lawful purposes and in accordance with these Terms. No other use is permitted. Without limiting the foregoing, you may not use the Fitz Online Services: (a) for any purpose that is unlawful or prohibited by these Terms; (b) to cause harm or damage to any person or entity; (c) to interfere with the proper operation of the Fitz Online Services; or (d) to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by Fitz in its sole discretion). YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS FITZ AND ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, AGENTS, LICENSORS, BUSINESS ASSOCIATES, AND SUPPLIERS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF ANY FITZ ONLINE SERVICES IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE APPLICABLE LAW OR THESE TERMS.
Provisions or Suspension/Withdrawal of the Fitz Online Services
You understand and agree that: (a) the Fitz Online Services may change from time to time without notice to you. Any new feature that augments, enhances or modifies the current Fitz Online Services is subject to these Terms; (b) we may decline to provide access to the Fitz Online Services or stop (permanently or temporarily) providing the Fitz Online Services (or any feature, program or content within the Fitz Online Services) to you or other users at our sole discretion, without notice or liability to you; and (c) if we disable access to your account, you may be prevented from accessing the Fitz Online Services, your account details, or any files or other content which are contained in your account.
Social Media Access
If you use a mobile device to access the Fitz Online Services, the following additional terms and conditions (“Mobile Terms”) you acknowledge and agree that: (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Fitz Online Services; and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise. Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use. See iPhone App End User Agreement and Android App End User Agreement. By accessing or using any Fitz Online Services via a mobile device, you agree to these Terms and to any applicable terms of a mobile app you may use.
Fitz makes no representations or warranties that the site is appropriate or available for use in all geographic locations. If you access or use the site from outside the United States, you are solely responsible for compliance with all applicable laws, including without limitation, export and import regulations of other countries. All prices displayed on the Fitz Online Services are quoted in U.S. Dollars and are valid and effective only in the United States.
Indemnity, Disclaimers and Limits on Liability
You agree to indemnify, defend, and hold harmless The Majestic Star Casino LLC, its affiliated companies and franchisees (collectively “Fitz”), and their respective affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, and representatives (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (“Liabilities”) incurred by any Covered Entity in any way arising out of or relating to your breach of these Terms. Fitz reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and if Fitz assumes defense and control, you agree to cooperate with our defense of an applicable claim. You agree not to settle any matter related to the Fitz Online Services, including indemnified claims, without our prior written consent. We will use reasonable efforts to inform you of any indemnified matter.
To the maximum extent permitted by law, THE COVERED ENTITIES MAKE NO WARRANTY OF ANY KIND ABOUT THE FITZ ONLINE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON INFRINGEMENT. THE COVERED ENTITIES HAVE NOT MADE ANY REPRESENTATION AS TO THE POTENTIAL BENEFITS YOU MAY REALIZE BY USING THE FITZ ONLINE SERVICES. THE FITZ SERVICES ARE PROVIDED AS IS, WITH ALL FAULTS, AND AS AVAILABLE. THE COVERED ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THOSE MENTIONED ABOVE.
THE COVERED ENTITIES ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY A THIRD PARTY OR BY YOU OR ANYTHING ACCESSED VIA ANY LINKS TO THIRD PARTY WEBSITES, SERVICES, OR SOFTWARE. THE COVERED ENTITIES UNDERTAKE NO OBLIGATION TO ENFORCE THEIR POLICIES OR RIGHTS AGAINST ANY THIRD PARTY. YOU BEAR ALL RISKS ASSOCIATED WITH USING THIRD PARTY LINKS, WEBSITES, ETC. THE COVERED PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR THE CONDUCT OF ANY USER OF THE FITZ ONLINE SERVICES.
LIMITATIONS ON LIABILITY
THE COVERED ENTITIES SHALL NOT BE LIABLE FOR (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, STATUTORY DAMAGES OR PENALTIES, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES, OR (B) LOSS OF OR DAMAGE TO REPUTATION ARISING IN CONNECTION WITH, OUT OF, OR AS A RESULT OF (I) THESE TERMS OR THE FITZ ONLINE SERVICES, AND (II) ANY ACTS OR OMISSIONS OF ANY OF THE COVERED ENTITIES IN CONNECTION WITH THESE TERMS OR THE FITZ ONLINE SERVICES. THE ONLY REMEDY AVAILABLE TO YOU UNDER THESE TERMS AND IN CONNECTION WITH THE FITZ ONLINE SERVICES IS REIMBURSEMENT OF THE ACCESS FEES YOU HAVE PAID FOR THE FITZ ONLINE SERVICES.
In the event that you have a dispute with one or more other users, you hereby release the covered entities from any and all claims, demands, damages (actual and consequential), losses and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to these disputes. If you are a California resident, you waive California Civil Code Section 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.”
Exceptions to Disclaimers and Exclusions of Damages
If you live in a jurisdiction that does not allow disclaimer of warranties or exclusion of damages, the foregoing disclaimers and exclusions may not apply to you. For New Jersey residents, the limitations set forth above are inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute.
Timing of Claims
You must bring any claim you have against Fitz relating to these terms or the Fitz Online Services within two years from the date of accrual of the applicable claim.
Legal Disputes and Arbitration Agreement
INITIAL DISPUTE RESOLUTION
We are available by email at to address any concerns you may have regarding your use of the Fitz Online Services. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
BINDING ARBITRATION AGREEMENT
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 15.1 above, then either party may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Fitz Online Services shall be finally settled by binding arbitration administered by JAMS on a non-confidential basis in accordance with the provisions of its then-effective rules, including its streamlined procedures, 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 of Service, including, but not limited to any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision and the parties hereby reject, waive and disclaim the application of any state Arbitration Act.
The JAMS Rules governing the arbitration may be accessed at https://www.jamsadr.com/rules-streamlined-arbitration/, or by calling JAMS at 1.800.352.5267. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Fitz will pay the additional cost. A request for payment of fees should be submitted to JAMS along with your form for initiating the arbitration, and Fitz will make arrangements to pay all necessary fees directly to JAMS. If the arbitrator finds the arbitration to be non-frivolous, we 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.
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. 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 – SMALL CLAIMS COURT CLAIMS
Notwithstanding the parties’ decision to resolve all disputes through arbitration, 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 in the preceding three paragraphs by sending written notice of your decision to opt-out to the following address: Attn: Marketing, Fitz Casino & Hotel, 711 Lucky Lane, Robinsonville, MS 38664 or by fax to 662-363-3467. The notice must be sent within thirty (30) days of registering to use the Fitz Online Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, Fitz also will not be bound by them.
Exclusive Venue for Litigation
Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Tunica, MS (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Tunica, MS for any litigation other than small claims court actions. The Parties irrevocably consent to personal jurisdiction in Tunica, MS for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of Tunica, MS over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Fitz Online Services, and (b) any acts or omissions of any of the Covered Entities in connection with these Terms or the Fitz Online Services.
Copyright and Trademark
Unless otherwise noted, all materials published in or through the Fitz Online Services are protected as the copyrights, trade dress, trademarks and/or other intellectual property of Fitz or its licensors. You may not remove or alter any copyright, trademark or other proprietary right notice in the Fitz Online Services. All rights not expressly granted are reserved
Errors and Inaccuracies
The Fitz Online Services may contain errors, inaccuracies or omissions related to product or service descriptions, pricing, promotions, offers, availability and other information. If any information in the Fitz Online Services is inaccurate, incomplete or out of date, we reserve the right to correct, change or update such information or to cancel orders related to such information (including after you have submitted an order) without prior notice and issue a refund for amounts paid. We cannot guarantee that your computer’s display of color or other product features is accurate.
If you have questions regarding any of these Terms, you can call us at 662-363-5825 or write to us at Fitz Marketing, 711 Lucky Lane, Robinsonville, MS 38664.
The Fitz name, design, logos and related marks are registered trademarks of The Majestic Star Casino LLC. All rights reserved.