TERMS OF USE AGREEMENT
The following terms of use (the "Terms of Use") contain the terms and conditions applicable to you and your access to and use of our website, www.360sportsinc.com, including the mobile version of our website (collectively, the "Website"), and our mobile application (the "App"), if applicable (collectively, the Website and the App are referred to as the "Properties"). The Properties are owned and operated by 360 Sports, Inc., a Delaware corporation, and its affiliates ("360," "we", "us", "our"). Your use of the Properties (and any other feature, content or application offered by the Properties) is at all times subject to these Terms of Use, as the same may be modified by us, and all applicable laws, rules and regulations. Please read these Terms of Use carefully.
1. Acceptance of Terms of Use. BY ACCESSING AND USING THE PROPERTIES, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE. FOR EXAMPLE, SECTION 19 CONTAINS AN ARBITRATION AGREEMENT WHICH STATES THAT YOU MUST ARBITRATE INSTEAD OF GOING TO A COURT BEFORE A JUDGE AND JURY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE PROPERTIES. Except where prohibited by law, these Terms of Use may be changed, modified, or altered by us in our sole discretion at any time without prior notice. If we materially change the Terms of Use, we will notify you through a notice, updated Terms of Use on the Properties or by email (sent to the email address specified in your account, if any), prior to or upon the change(s) becoming effective. Accordingly, when you access or use the Properties, you should check the date of the Terms of Use and be aware of any changes since the last version. Your continued use of the Properties following the posting of any changes to these Terms of Use means that you accept such changes. Your access to and use of the Properties will be governed by the Terms of Use in effect at the time of such access or use.
2. Other Sources of Terms and Conditions; Promotions and Coupons. In order to participate in or use certain services, promotions, discounts or coupons that may be run from time to time with respect to the Properties ("Offers"), you may be required to agree to additional or different terms and conditions ("Offer Terms"). If there is a conflict between these Terms of Use and any Offer Terms, the Offer Terms shall control and the non-conflicting provisions in these Terms of Use will continue to apply. For example, if you seek to redeem a coupon code on the Properties, your redemption of the coupon code is subject to the specific Offer Terms applicable to that code and to the non-conflicting provisions of these Terms of Use. If an Offer does not contain Offer Terms, then only these Terms of Use apply. Under these Terms of Use, unless otherwise prohibited by law, any Offer: (a) is valid only at the Property identified in the Offer and at no other store; (b) applies to in-stock merchandise only and not to gift cards or services; (c) is not valid for cash or cash equivalents; (d) is limited to one Offer per person; (e) must be entered at checkout and/or in your account to be redeemed; (f) may not be combined with any other coupons or offers; (g) may only be used once; (h) expires on the later of five years from the date of issue or the date required by applicable law, and (i) cannot be reproduced, modified, sold or traded or used to pay any tax, such as sales tax, or any value added service. In addition, some Offers may be in the form of a voucher. If you purchase a voucher with a promotional value beyond the amount paid, you may redeem the voucher for the promotional value until the expiration date, or for the amount paid after the end of the applicable promotional period. We reserve the right to limit, change, or cancel any Offer or associated order, without prior notice, even after you have attempted to redeem the Offer or placed your associated order. By using an Offer, you indicate your acceptance of all applicable terms and conditions, including these Terms of Use and the Offer Terms, if applicable. Some Offers also may be subject to additional requirements or restrictions imposed by us or participating third parties, such as the vendors or other merchants that issued, sponsored, or are associated with the Offer.
3. Use of the Properties. The content and information posted by us on the Properties may be used only for informational, personal or other purposes authorized by us. By accessing and using the Properties, you represent and warrant that: (a) all information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older; and (d) your use of the Properties does not violate any applicable law, rule or regulation. The Properties are intended for use by residents of the United States ("U.S.") or non-residents that agree to use the Properties in accordance with U.S. laws, these Terms of Use and the Privacy Policy. By using the Properties, you further represent and warrant that you meet these residency requirements. Use of and access to the Properties is void where prohibited.
4. Unauthorized Use. You may not use the Properties for any unauthorized use or for any illegal or unlawful purpose. Any unauthorized use or violation of these Terms of Use may immediately and automatically terminate your right to use and access the Properties and may subject you to legal liability. Appropriate legal action may be taken for any illegal or unauthorized use of the Properties. We may remove any unauthorized content, links, etc. without notice. Some examples of unauthorized, illegal or unlawful use of the Properties include, but are not limited to:
Copying, modifying, displaying, performing, distributing, republishing, or retransmitting any content or material (including, by way of example, images and text), in whole or in part, from/on the Properties without our prior written consent;
Collecting usernames and/or email addresses of users for the purpose of sending unsolicited email;
Using a framing or similar technique without our prior written permission;
Creating or maintaining any link from another website to any page on the Properties without our prior written permission;
Criminal or tortious activity, including fraud, spamming, spimming (spam by instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
Covering or obscuring the banner advertisements on the Properties, if any, via HTML/CSS or any other means;
Any automated use of any system, such as using scripts to alter content;
Interfering with, disrupting, or burdening the Properties or the networks, systems or services connected to the Properties;
Using any automated system or software to extract data from the Properties for commercial purposes (including "screen scraping");
Attempting to impersonate another user or person at checkout or otherwise;
Using the account, username, or password of another user or disclosing your password, as applicable, to any third party or permitting any third party to access your account;
Displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Properties on behalf of that person, such as placing commercial content on the Properties;
Using the Properties for any harassing, threatening, libelous, abusive, obscene or privacy-invading purposes; or
Using the Properties in a manner inconsistent with any applicable law, rule or regulation.
5. FanCash. "FanCash" is a form of merchandise credit redeemable only toward future purchases on the Properties. To earn and redeem FanCash, you must create and maintain a customer account registered with a valid email address. When you sign in to your account, you may view your FanCash balance, which will be applied automatically toward the next purchase you make. Unless required by law, FanCash is not redeemable for cash, and cannot be transferred, sold or distributed to others. Fan Cash earned 10/21/2015 - 12/31/2015 expires on 12/31/2015 at 11:59pm PT. FanCash earned prior to 10/21/2015 will retain its original expiration date of 12 months after the date it was earned. FanCash expires if you do not complete a purchase through your account after 12 or more months. We reserve the right to discontinue FanCash or modify the terms applicable to FanCash at any time. FanCash is a registered trademark of 360.
6. Links to Third Party Sites; Advertisers. The Properties may provide you with links or other access to other websites, services, products or content of third parties, including the Other Platforms, as defined in Section 10 below ("Third Party Sites"). We have no control over, and do not necessarily endorse, any Third Party Site's services, products or content. You acknowledge and agree that you access such Third Party Sites at your own risk and are wholly responsible for making your own independent judgment regarding your use or interaction with the same. We recommend that you read the terms of use and privacy policies of each Third-Party Site that you access.
7. Privacy Policy. You agree to our collection, use and sharing of your information as set forth in our Privacy Policy ("Privacy Policy"). All provisions of the Privacy Policy are incorporated by reference herein.
8. Products, Content and Specifications. The inclusion of any products or services on the Properties does not imply or warrant that these products or services will be available at any particular time. Products included on the Properties may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Properties. In the event a product is listed at an incorrect price due to typographical error or error in pricing or other information, we will have the right to cancel orders of any such product, whether or not the order has been confirmed and/or your credit card or other payment method has been charged. If your credit card has already been charged for the purchase and your order is cancelled, we will refund any such charges within a commercially reasonable period of time after cancellation. The actual color of products you see will depend in part on your computer system, and we cannot guarantee any color or texture or detail of actual products will be accurate. In no event will anything contained in these Terms of Use or any area of the Properties be construed as a representation or guarantee with respect to any content, services or products. We do not guarantee the accuracy, completeness or usefulness of any descriptions or other content. Further, we do not endorse, and are not responsible for, the accuracy and reliability of any opinion or statement made on the Properties by any third party, including but not limited to, customers, manufacturers, distributors or suppliers of products and services sold through the Properties. We assume no responsibility or obligation to modify or remove any inaccurate content. In addition, we may make changes to information about price, availability or other product attributes without notice. We reserve the right, without prior notice, to limit the order quantity on any product or service, to refuse service to any customer, or to cancel any order, including after it is submitted. We also may require additional verifications or other information prior to the acceptance and/or shipment of any order. Your receipt of an order confirmation from us does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. With respect to the shipment of products and services sold through the Properties, risk of loss and title for items purchased from the Properties pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. It also is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Properties. By placing an order, you represent that the products ordered will be used only in a lawful manner, in accordance with all applicable laws, rules and regulations, including copyright law.
9. Property; Intellectual Property. All content of the Properties (including, without limitation, text, graphics, icons, images, clips and software) is protected by copyright, trademark, and other laws. Our Names, logos, taglines, icons and marks are the exclusive property of 360 Sports, Inc. or one of its affiliates, all rights reserved, and may not be used by you without our prior written permission. Unless otherwise indicated, all other intellectual property appearing on the Properties is the property of its respective owner. We reserve all rights not expressly granted in and to the Properties' content and services.
10. User-Generated Content. Users may be able to post content in certain areas on the Properties or on other websites or platforms that we own or operate, including on social media platforms such as Facebook, Instagram, Twitter and Pinterest ("Other Platforms"). You are solely responsible for any content (including, without limitation, photos, artwork, videos, text, graphics, and other information) you upload, post, display or otherwise provide to us through the Properties or Other Platforms ("User Content"). We take no responsibility for, and assume no liability for, any User Content posted by you or any other party. Any User Content you post or provide, including any questions, reviews, comments and suggestions, will be treated as non-confidential and non-proprietary. By sharing User Content with us, you grant us a worldwide, royalty-free, perpetual, irrevocable and transferable right to use, copy, reproduce, perform, distribute, display, publish, sell, and create derivative works of, the User Content, and to grant and authorize sub-licensees of the foregoing. Additionally, we shall be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including, without limitation, developing, manufacturing and marketing products and services which incorporate such User Content. You represent and warrant that: (a) you own the User Content posted by you on the Properties or otherwise have the right to grant the license set forth in this Section 10; (b) your User Content does not violate the privacy rights, publicity rights, intellectual property rights, or any other rights of any person or entity; and (c) the posting of User Content on the Properties does not result in a breach of any contract between you and a third party. You agree to pay for all royalties, fees and other monies owing to any person by reason of any User Content you post on the Properties. We are under no obligation to screen or monitor User Content, but may review User Content from time to time at our sole discretion to review compliance with these Terms of Use. We may reject, refuse to post, edit or remove any User Content at any time without notice, for any or no reason.
11. Termination of Access and/or Account. In addition to any right or remedy that may be available to us under these Terms of Use or under applicable law, we may limit, suspend, or terminate your access to the Properties or Other Platforms (including, without limitation, your account registration and your ability to post User Content), at any time, with or without notice, and with or without cause. We also may refer any information on illegal activities, including your identity, to the proper authorities.
12. Term. These Terms of Use shall remain in full force and effect while you use or access the Properties or have an account with the Properties. See our Privacy Policy for instructions on how to modify or delete your account.
13. Indemnity. You agree to defend, indemnify and hold us, our subsidiaries, affiliates, suppliers, and licensors and each of our respective officers, agents, partners and employees (the "360 Parties") harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, issued by any third party due to or arising out of your use of the Properties in violation of these Terms of Use and/or arising from a breach of these Terms of Use (including, without limitation, any breach of your representations and warranties set forth herein).
14. DISCLAIMER OF WARRANTIES. YOUR USE OF THE PROPERTIES IS AT YOUR SOLE RISK. THE CONTENT AND INFORMATION POSTED ON THE PROPERTIES, AND THE PRODUCTS AND SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE PROPERTIES, ARE MADE AVAILABLE TO YOU "AS IS" WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE 360 PARTIES DISCLAIM AND EXCLUDE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTIES, THEIR CONTENT AND THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THE PROPERTIES.
15. LIMITATION ON LIABILITY. IN NO EVENT SHALL THE 360 PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF GOODWILL, LOSS OF REPUTATION, COST OF COVER DAMAGES OR INTANGIBLE LOSSES OF ANY KIND ARISING FROM YOUR USE OF THE PROPERTIES, YOUR INABILITY TO USE THE PROPERTIES, OR THE PRODUCTS OR SERVICES AVAILABLE THROUGH THE PROPERTIES, EVEN IF THE 360 PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE 360 PARTIES' LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: (I) THE PURCHASE PRICE FOR THE ITEM AT ISSUE, IF APPLICABLE; or (II) $10.00.
16. Third Party Transactions. Through your use of the Properties, you may have the opportunity to engage in commercial or other transactions with other users, vendors and other third parties. You acknowledge that all transactions relating to any merchandise or services offered by any third party, including but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the third party seller or purchaser of such merchandise and services and you. WE MAKE NO WARRANTY REGARDING ANY THIRD PARTY TRANSACTIONS EXECUTED THROUGH OR IN CONNECTION WITH THE PROPERTIES, AND YOU UNDERSTAND AND AGREE THAT SUCH THIRD PARTY TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THE PROPERTIES FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED FROM A THIRD PARTY ON OR THROUGH THE PROPERTIES, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER'S OR SUPPLIER'S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH THIRD PARTY PRODUCTS OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED BY THE THIRD PARTIES, IF APPLICABLE.
17. U.S. Export Controls. Software made available to you by the Properties (the "Software"), if any, is subject to U.S. export controls. No Software may be downloaded from the Properties or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
18. Governing Law. These Terms of Use and your use of the Properties will be governed by federal and Delaware law, regardless of the conflict of law provisions thereof and regardless of where you live or from where you access or use the Properties.
19. Arbitration/No Class Action. Except where prohibited by law, as a condition of using the Properties, you agree that any and all disputes, claims and causes of action (collectively, "Claims") arising out of or connected with the Properties, shall be resolved individually, without resort to any form of class action, exclusively by binding arbitration under the rules of the American Arbitration Association for full and final settlement of such Claim. Such arbitration shall be held in accordance with the Rules for Expedited Procedures under the Commercial Arbitration Rules of the American Arbitration Association or other mutually agreeable organization, before a single arbitrator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement), selected by agreement of both parties or by an independent mediator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement) if the parties are unable to agree. Payment of all filing, administration, arbitrator and/or mediator fees will be governed by the rules of the American Arbitration Association. In the event that you conclusively demonstrate that your payment of such fees is cost-prohibitive, we will consider in good faith paying all or a portion of such fees on your behalf to prevent the arbitration from being cost-prohibitive. An award rendered by the arbitrator(s) may be entered and confirmed by the courts of the State of Florida, County of Duval, or the United States District Court for the Middle District of Florida. The parties agree that any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of Florida, County of Duval, or the United States District Court for the Middle District of Florida. You agree that you must assert all claims against us within one (1) year from the date of the applicable purchase or, if no purchase was made, from the date the claim first accrued.
20. Miscellaneous. We may give you notice of certain events from time to time and may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on the Properties or (if we choose to do so in our sole discretion) delivering them to you through email if you have provided us with your accurate email address. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. These Terms of Use and your account on the Properties are personal to you and may not be transferred or assigned. Our performance under these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Properties or information provided to or gathered by us with respect to such use. If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use shall continue in effect. These Terms of Use, together with any additional terms and conditions or policies referred to and incorporated herein (including the Privacy Policy and/or additional terms applicable to various parts of the Properties), constitute the entire understanding between you and us.
21. Contact Information. Questions regarding these Terms of Use should be directed to: 360 Sports, Inc., 8100 Nations Way, Jacksonville, FL 32256.
These Terms of Use are effective as of, and were last updated on, December 5, 2015.