1. INTRODUCTION AND ELIGIBILITY
Welcome to SmackSportswear.com (the “Website”). These Terms and Conditions (these “Terms”) apply to your activity on SmackSportswear.com as well as all use of our products and services (“Products/Services”). By using any new Products/Services or visiting the Website, the user acknowledges and agrees to these Terms.
You can connect to the full suite of Products/Products/Services through a single point of sign-on—your Smack Sportswear customer account (“Account”).
Who are We? The Products/Services are made available to you (individually, “you,” and collectively, “Users”) by Smack Sportswear (sometimes referred to herein as “We,” “we,” “Our,” “our” or “us”), subject to these Terms, which may be modified from time to time without prior notice to you.
Binding Agreement. By accessing, using, or downloading any of the Products/Services, you agree to follow and be bound by the Terms. You can review the most current version of the Terms at any time at by accessing our Policies webpage.
Things May Change. We and our third party providers may make improvements and/or changes in the Products/Services, including to the price of fees charged for the Products/Services, at any time without prior notice.
Links and Alternate or Additional Terms or Guidelines. We may require you to agree to additional terms, rules, policies, guidelines, or other conditions (collectively, "Guidelines") in order to use particular Products/Services, and/or features, to participate in certain promotions available through the Products/Services, and/or to receive and/or use some Products/Services that we may offer from time to time. In such cases, you may be required to expressly consent to additional terms set forth in applicable Guidelines. For instance, you might be obligated to check a box or click on a button marked "I agree." If any of the terms of any Guidelines are different than the Terms, the terms of the Guidelines will supplement or amend the Terms, but only with respect to the matters governed by the Guidelines.
Eligibility. The Products/Services are not intended or designed for children under 13 years of age. By using the Products/Services, you represent and warrant that you are at least 18 years of age and have reviewed and now consent to the Terms, or, if you are under 18 years of age (but 13 years of age or older), then you affirm that you possess the legal consent of your parent or guardian to access, use and/or purchase the Products/Services.
If you are a parent or guardian agreeing to the Terms for the benefit of a child over 13, then you represent and warrant that you have reviewed and now consent to the Terms and accept full responsibility for your child's use of the Products/Services, including all financial charges and legal liability that such child may incur in connection with the use of the Products/Services.
The Products/Services may include features that promote physical activity and fitness. By using the Products/Services, you agree, represent, and warrant that you have received consent from your physician to participate in health and fitness programs, workouts, exercises, or any other related activities made available through or enhanced by the Products.
IMPORTANT: WE RESERVE THE RIGHT TO MODIFY OR DISCONTINUE, TEMPORARILY OR PERMANENTLY AND AT ANY TIME, THE PRODUCTS/SERVICES OR ANY PORTION OF THEM WITH OR WITHOUT NOTICE. YOU AGREE THAT WE ARE NOT LIABLE TO YOU OR TO ANY THIRD PARTY IN ANY WAY FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF ALL OR SOME OF THE PRODUCTS/SERVICES.
IF YOU DO NOT AGREE WITH THE TERMS, YOU ARE PROHIBITED FROM USING THE PRODUCTS/SERVICES. BY USING THE PRODUCTS/SERVICES, YOU CONSENT TO THE TERMS AND ALL REVISIONS FOLLOWING YOUR USE.
FURTHER, YOU ACKNOWLEDGE AND AGREE THAT WE OFFER THE PRODUCTS/SERVICES AND SET THE PRODUCTS/SERVICES’ PRICES IN RELIANCE UPON THE WARRANTY DISCLAIMERS, RELEASES, AND LIMITATIONS OF LIABILITY SET FORTH IN THE TERMS. YOU ALSO ACKNOWLEDGE AND AGREE THAT THESE WARRANTY DISCLAIMERS, RELEASES, AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US AND THAT THESE WARRANTY DISCLAIMERS, RELEASES, AND LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. WE WOULD NOT BE ABLE TO PROVIDE THE PRODUCTS/SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE WARRANTY DISCLAIMERS, RELEASES, AND LIMITATIONS OF LIABILITY.
2. PRIVACY STATEMENT
The Smack Sportswear Privacy Statement is incorporated into and part of the Terms. Please review the Privacy Statement carefully for disclosures relating to our collection, use, and sharing of information in connection with the Products/Services including personal and geographic location information. Visit the Privacy page for details.
3. MODIFICATION OF THE TERMS AND CONDITIONS OF USE
We reserve the right, at our discretion, to revise, modify, add, or remove portions of the Terms at any time. By your use of the Products/Services, you obligate yourself to periodically check the Terms for any changes. Your continued use of the Products/Services after the posting of any revisions or modifications to the Terms constitutes your binding acceptance of such changes.
4. PARTNER AND OTHER TERMS AND CONDITIONS
Additional and/or different terms and conditions of use may apply to Products/Services or products provided through one or more of our partners, advertisers, or business associates, and you should refer to such terms and conditions before accessing, purchasing, using, or subscribing to such Products/Services or products.
5. OWNERSHIP AND PROPRIETARY RIGHTS IN THE PRODUCTS/SERVICES AND SMACK SPORTSWEAR CONTENT
The Products/Services are owned and operated by Smack Sportswear. All content on the Products/Services (except for User Content as that term is defined below), including but not limited to text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features, patents, copyrights, trademarks, trade dress, service marks, and other intellectual property (collectively, “Smack Sportswear Content”) is owned by, or licensed to, Smack Sportswear. You acknowledge and agree that the Products/Services, any necessary software used in connection with the Products/Services (if any), and any Smack Sportswear Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorized by Smack Sportswear or applicable third party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Products/Services, the Products/Services’ software, or any Smack Sportswear Content offered as part of the Products/Services (other than User Content as that term is defined below), in whole or in part.
Limited Personal License to You. We grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Products/Services, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Products/Services. You agree not to access the Products/Services by any means other than through authorized interfaces. You may not download, copy, or save any Smack Sportswear Content or any portion of it, for any purpose, except as permitted by select Products/Services (e.g., printed maps) as provided for in the specific Guidelines and/or additional terms applicable to those Products/Services, and in the limited cases where you need to print a copy of individual screens appearing as part of the Products/Services solely for personal use or records, provided that any logos, marks or other legends that appear on the copied screens remain and are not removed from the printed copy. Except as expressly permitted under these Terms or applicable Guidelines, you may not modify, copy, publish, display, transmit, adapt, or in any way exploit Smack Sportswear Content without our prior written permission.
Our Trademarks and Intellectual Property (Reservation of Rights). We own the terms SmackSportswear.com along with the associated logos, trade dress, service marks, and names of the specific Products/Services (collectively, the “SubDir Trademarks”), and they are the exclusive trademarks of Smack Sportswear, as applicable. You may not use or display any such SubDir Trademarks in any manner without our prior written permission. Any third party trademarks or service marks displayed via the Products/Services are the property of their respective owners. We reserve all rights not expressly granted hereunder.
6. ACCOUNT INFORMATION Your Account will automatically provide you access and means to use any new products or Products/Services that are made available to Users of this Website, subject to the payment of any applicable fees.
User Data. Account creation requires you to provide an email address and password and certain other personal information, as that term is used in our Privacy Statement; additionally, you may furnish other information such as your height, weight, and gender (collectively, “User Data”) as part of your use of particular Products/Services. You should: (a) provide true, accurate, current, and complete information about yourself as prompted during the Account creation/registration process, and (b) maintain and promptly update the User Data to keep it accurate and current. You agree that we may use your User Data to provide the Products/Services and for other Service-related purposes. If you provide any information that is inaccurate or not current, some of our Products/Services may not operate correctly. Additionally, if you provide any information for the purposes of fraudulent or criminal activities, or we have reasonable grounds to suspect that such information has been provided, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Products/Services.
Third Party Products/Services and Logins. You may enable or log in to the Products/Services via various online third party Products/Services, such as social media and social networking Products/Services like Facebook or Twitter (“Social Networking Products/Services”). By logging in or directly integrating these Social Networking Products/Services into the Products/Services, we make your online and mobile experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for, or log into Social Networking Products/Services on the websites of their respective providers. As part of such integration, the Social Networking Products/Services will provide us with access to certain information that you have provided to them, and we will use, store, and disclose such information in accordance with our Privacy Statement. Please remember that the manner in which Social Networking Products/Services use, store, and disclose your information is governed solely by the policies of such third parties, and we have no liability or responsibility for the privacy practices or other actions of any third party website or service that may be enabled within the Products/Services. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available in connection with Social Networking Products/Services. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Social Networking Products/Services. We enable these features merely as a convenience to our Users.
Third Party Applications and Content. You may be able to access certain third party applications or content (“Third Party Applications”) via your Smack Sportswear Account. If you choose to access these Third Party Applications, you may be requested to log-in and sync your Account with such applications. You are in no way obligated to use any Third Party Applications, and your access and use of such applications is entirely and solely at your own risk. If you opt to use Third Party Applications via your S Account, they will gain access to certain information that you have provided to us, including personal information, and they will use, store, and disclose such information in accordance with their individual privacy policies. The manner in which Third Party Applications use, store, and disclose your information is governed solely by their individual privacy policies and terms and conditions. We have no liability or responsibility for the privacy and information security practices or other actions of any Third Party Applications that you choose to access through your Account. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available by any Third Party Applications. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third Party Applications.
7. PASSWORD AND SECURITY DISCLAIMER
When you create an Account, you will be asked to create a password to protect your Account. Because you will be responsible for all activities that generate from your Account, and you can only access your Account upon the transmission of your password, you should keep your password strictly confidential at all times. We reserve the right to suspend your Account and/or require that you alter your password if we believe for any reason that your password is no longer secure. YOU MAY NOT SHARE YOUR ACCOUNT PASSWORD WITH ANY OTHER PERSON FOR ANY REASON.
We try to use reasonable security measures to protect against unauthorized access to your Account. We cannot, however, guarantee absolute security of your Account, your User Data or User Content, or the personal information or location information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Products/Services or its contents. You agree to immediately notify Smack Sportswear of any unauthorized or suspected unauthorized use of your Account or password or any other breach of security, and to accept all risks of unauthorized access to your Account, User Data or User Content, or any other information you provide in connection with your use of the Products/Services.
8. PAYMENT TERMS AND CANCELLATIONS
You agree to pay any fees due for and incurred by your use of any Products/Services that require payment or a subscription (“Paid Products/Services”). If you choose to use Paid Products/Services, you must designate and provide information about your preferred payment method (“Payment Method”). You may switch to a different Payment Method or update your information by visiting the “Account Settings” page within the Website or through the “My Account” page. You agree to pay all fees and other charges incurred in connection with your Account. We will administer and apply payments you transmit via the online billing mechanisms of any of our affiliated websites and third party providers in a timely and commercially reasonable manner. No refunds or credits will be provided upon cancellation. For other policies and procedures relating to order cancellations and refunds, see our page entitled “Policies”.
Third Party Products/Services Disclaimer. Certain third parties and advertisers with whom we maintain a commercial relationship may market or sell their own promotions, products, and Products/Services on (or through) the Products/Services (“Third Party Products/Services Providers”). To participate in some of those promotions or obtain some of those products or Products/Services, you may be required to make payment for the specific product, service, or promotion to a Third Party Products/Services Provider that markets or sells that specific product, service, or promotion. We are not responsible for the administration or application of any payments required by any such Third Party Products/Services Provider for any such select product, Products/Services, or promotions. Further, we are not responsible for the performance or nonperformance of any Third Party Products/Services Provider. You are in no way obligated to use or transact business with any particular Third Party Products/Services Provider. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU AS THE RESULT OF ANY OF YOUR DEALINGS WITH THIRD PARTY PRODUCTS/SERVICES PROVIDERS AVAILABLE ON THE PRODUCTS/SERVICES.
Errors and Inaccuracies. Our goal is to provide complete, accurate, up-to-date information through the Products/Services. Unfortunately, it is not possible to ensure that any website or mobile application is completely free of human or technological errors. The Products/Services may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions—including after an order has been submitted—and to change or update information at any time without prior notice. We sincerely apologize for any inconvenience this may cause.
9. USER CONTENT
The Products/Services contain interactive features that allow users to post, submit, publish, display, upload, email, message, supply, transmit, or otherwise make available to other users or persons (hereinafter, “Share”) information (other than personal information and/or location information which are expressly covered and governed by our Privacy Statement), including but not limited to data, text, files, geo-mapped routes, sound, photos, videos, graphics, artwork, ideas, communications, designs, opinions, status updates, physical activity such as workouts and workout data, sleep activity, comments, and “likes” (collectively, “User Content”).
Your Responsibility for User Content. User Content available in connection with the Products/Services, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such User Content originated. This means that you, and not us, are entirely responsible for all User Content that you Share via the Products/Services.
By Sharing User Content via the Products/Services, you warrant:
•you are solely responsible for the transmission, accuracy, completeness, and publication of that User Content;
•you control all of the rights to that User Content and that it does not and will not infringe or violate the rights of any third party.
Prohibited User Content. You may not Share User Content in connection with the Products/Services that we determine in our sole discretion:
• is offensive, objectionable, and/or promotes racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
• harasses or advocates harassment of another person;
• exploits people in a sexual or violent manner;
• contains nudity, violence, or pornographic subject matter.
• In addition, you may not Share User Content in connection with the Products/Services that:
provides any telephone numbers, street addresses, last names, or email addresses of anyone except yourself;
• promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, or libelous;
• you do not have a right to make available under any law or under contractual or fiduciary relationships;
• infringes any patent, trademark, trade secret, copyright, privacy, or other proprietary rights of any third party, including User Content that promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
• involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, "spimming," or "spamming;"
• furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons or drugs, violating someone's privacy, or providing or creating computer viruses;
• solicits passwords or personal identifying information for commercial or unlawful purposes from other members;
involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes;
• involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes;
• includes a photograph of another person posted without that person's consent or, in the case of children under the age of eighteen (18), parental consent, or otherwise constitutes an invasion of an individual's privacy or infringement of publicity rights; or
• contains a virus or other harmful component.
IMPORTANT: Review Of User Content You acknowledge and agree that we and our designees have the right (but not the obligation), in our sole discretion, to pre-screen, monitor, refuse, or remove any User Content that is available via the Products/Services. We may review and remove User Content at any time for any reason. Further, you acknowledge and agree that we may, at our sole discretion, deactivate or delete your Account temporarily or permanently and at any time if you post any of the Prohibited User Content outlined above.
Inaccurate or Unsafe User Content. By consenting to the Terms, you understand and acknowledge that when you access or otherwise use the Products/Services, you may be exposed to User Content from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content.
Objectionable User Content. You understand that by using the Products/Services, you may be exposed to User Content Shared by other Users that is inaccurate, offensive, indecent, or otherwise objectionable.
User Content and Eligibility to Participate In Certain Sports Organizations. Certain sports organizations have rules on amateurism and eligibility that could potentially be implicated if you post User Content within the Products/Services, even User Content that you believe is noncommercial in nature. It is your responsibility to determine whether posting User Content within the Products/Services will affect your eligibility to participate in any sport under any applicable rules of any sports organization.
Deletion of User Content. Upon your termination of your Account, you may request that we completely “purge” your Account, including deleting any and all User Content previously submitted. We will undertake commercially reasonable efforts to ensure that your User Content associated with your Account is purged when you terminate your Account, subject to the limitation that we may not be able to fully delete all of your User Content, specifically any User Content posted in our community groups, or on other User pages. We therefore direct that you exercise good judgment when you post User Content. In addition, we cannot wholly purge health index-related User Content upon the deletion of a User Account. We will, however, remove individually identifiable information upon the termination of your Account. Please note that User Data which is absolutely essential for processing an outstanding order will not be affected by your request to purge your Account. Further, we reserve the right to retain any User Content and/or User Data as necessary for any legal or regulatory compliance purposes.
Our Rights in User Content and User Data. We do not claim ownership of User Content or User Data. However, with respect to User Content you submit or make available in connection with the Products/Services (other than User Data or Payment Method information), you grant Smack Sportswear a worldwide, perpetual, irrevocable, royalty-free, and non-exclusive license, as applicable, to use, copy, distribute, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, incorporate, and otherwise exploit such User Content for any purpose—commercial, marketing, advertising, or otherwise—or in connection with our business, the Products/Services, and/or the promotion or marketing thereof. We are entitled to assign or sublicense all or a portion of this License in its entirety, without payment to you. You acknowledge and agree that: (a) we have the right to arrange the posting of User Content in any way it desires in Smack Sportswear’s sole discretion; (b) Smack Sportswear has no obligation to provide you with any credit when using your User Content, but in the event Smack Sportswear chooses to provide you with credit, the size and placement of the credit is at Smack Sportswear’s sole discretion; (c) any "moral rights" in your User Content have been waived; and (d) you are not entitled to any compensation or other payment from us in connection with use of your User Content. Notwithstanding the above, we will not make use of any of your User Content in a manner that is inconsistent with the Privacy Settings that you establish for your Smack Sportswear Account.
Disclosure of User Content. Through your Smack Sportswear Account, where applicable, you will be able to control the privacy settings for the User Content that you share. However, you should be aware that sharing User Content in this manner inherently poses the risk of unintended disclosure and access by third parties to that User Content.
IMPORTANT: Your Settings, Sharing, and What Others May See or Access. You may have the option of making certain User Content that you submit by electing the “Private. Do Not Share” privacy setting. Additionally, you may have the option of making certain User Content that you submit or available only to those Users you have previously identified or accepted as “Friends” by electing the “Friends. Share With All My Friends” privacy setting.
If, in your Smack Sportswear Account privacy settings or upon submission of your User Content, you initially elect to mark such User Content as “Private. Do not Share.” “Friends. Share With All My Friends.” we will implement your election consistent with our promises to you for such User Content.
WARNING: If you do not affirmatively set your Account Privacy Settings or User Content upon submission to “Private. Do not Share.” or “Friends. Share With All My Friends,” or later change such designation to “Public. Share With Everyone.” so as to allow such User Content to be made generally available to the public, we cannot and do not guarantee the privacy of such User Content. Such User Content will be viewable by the public (not just other Users) once you have elected to set your Account Privacy Settings or User Content to “Public. Share With Everyone”.
In addition, some unauthenticated Users may have the ability to extract location information from photos or videos that are posted by you with a “Public. Share With Everyone” designation.
You Waive Your Rights and Any Claims Regarding User Content and Assume any Related Risks. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of any User Content Shared via the Products/Services. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against us with respect to any other party’s User Content. Without limiting the foregoing, we and our designees have the right to remove any User Content that violates the Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any User Content available in connection with the Products/Services, including any reliance on the accuracy, completeness, or usefulness of such User Content.
No Confidentiality and How to Share an Idea. Except for information necessary to place an order, you may not submit or share confidential or proprietary information or trade secrets through the Products/Services.
10. USAGE RULES
WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR ANY ACCOUNTS AND/OR ANY ACTIVITIES CONDUCTED THROUGH OR IN ANY WAY RELATED TO THE PRODUCTS/SERVICES (INCLUDING INVITING A FELLOW USER INTO A NETWORK OF FRIENDS), AS WELL AS ANY USER'S USE OF OR ACCESS TO LOCATION INFORMATION, PERSONAL INFORMATION, AND PROFILES OF OTHER USERS.
Prohibited Conduct & Uses. YOU UNDERSTAND, ACKNOWLEDGE, AGREE AND WARRANT THAT YOU MAY NOT AND THAT YOU WILL NOT:
• use the Products/Services or any personal information or location information displayed on or made available in connection with the Products/Services in any manner not expressly permitted by these Terms and our Privacy Statement. Further, you expressly agree that you will not use the Products/Services or any personal information or location information displayed on or made available in connection with the Products/Services to "stalk," harass, abuse, defame, threaten, or defraud other Users, or collect, attempt to collect, or store location information or personal information about other Users;
• use the Products/Services if you are under the age of 13 years old;
• Share Prohibited User Content as outlined above;
• use the Products/Services for any commercial or non-personal use, except as permitted by these Terms;
• fail to deliver payment for any Paid Products/Services;
• use the Products/Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
• make unsolicited offers, advertisements, or proposals or send junk mail to other Users of the Products/Services. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material and bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
• provide false or inaccurate registration credentials, impersonate any person or entity, including but not limited to a Smack Sportswear representative, and/or falsely claim an affiliation with any person or entity, or access the Accounts of other Users;
• share passwords or any other means of access to a mobile device while any Service is running and accessible with any third party or encourage any other User(s) to do so;
• misrepresent the source, identity, or content of information transmitted via the Products/Services;
• remove, circumvent, disable, damage, or otherwise interfere with: (i) the security-related features of the Products/Services; (ii) the features of the Products/Services that prevent or restrict use or copying of any content accessible through the Products/Services; or (iii) the features of the Products/Services that enforce limitations on use of the Products/Services;
• intentionally interfere with, or damage operation of the Products/Services, or any User's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
• attempt to gain unauthorized access to the Products/Services, other accounts, computer systems or networks connected to the Products/Services, or any part of it, through hacking, password mining, or any other means to interfere with, or attempt to interfere with, the proper working of any of the Products/Services;
• use any robot, spider, scraper, or other automated means to access the Products/Services for any purpose without our express written permission, or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Products/Services, or modify the Products/Services in any manner or form, nor will you use modified versions of the Products/Services, including (without limitation) for the purpose of obtaining unauthorized access to the Products/Services; •sell, transfer, or allow another person to access your Account, passwords, or profile; and/or use the Products/Services to harm minors in any way.
Acknowledgment of Our Data Access and Usage Rights. You acknowledge, consent, and agree that we may access, preserve, retain, and disclose your User Data, Payment Method, and other User Content as permitted by these Terms and our Privacy Statement, if we have your consent, or if we are required to do so by law or in a good faith belief that such access, preservation, retention, and/or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Smack Sportswear and its affiliates, and the general public. Subject to the foregoing, we will endeavor to use reasonable security measures to maintain the confidentiality of your User Data and Payment Method information.
11. INTERACTIONS WITH PRODUCTS/SERVICES USERS
Some of the Products/Services function as a venue to connect Users and certain third parties in a virtual community. As a neutral facilitator, we are not directly involved in the actual transactions and/or communications between you and other Users or such third parties. As a result, we have no control over the truth, accuracy, quality, legality, or safety of User Content or postings made by other Users or third parties. You shall at all times exercise common sense and good judgment when dealing with any other Users or third parties through the Products/Services. You are solely responsible for your involvement with other Users and third parties. We reserve the right, but have no obligation, to monitor disagreements between any Users. If you elect to use certain Products/Services for informing a friend about the Products/Services, we will require you to provide your friend's contact information and/or email address. We will automatically send that friend a one-time email. We may store the information you provide for a period of time, provided that we will use such information only to identify if your friend is, or later becomes, a User of the Products/Services. You represent that you are authorized to provide any third party email address or other information that you provide to us.
12. THIRD PARTY CONTENT & EQUIPMENT DISCLAIMER
You understand that use of certain features of the Products/Services may require you to purchase third party equipment or materials (e.g., GPS and/or mobile devices). While we may recommend, promote, or market the equipment or materials of certain third party suppliers, we have no responsibility for your acquisition or use of any third party equipment or materials, and we do not guarantee that third party equipment or materials will function with the Products/Services or will be error-free. Certain content displayed on or linked to via the Products/Services—namely, third party websites and news headlines (collectively “Third Party Content”)—is developed by individuals or merchants over whom we exercise no direct control. We do not endorse any Third Party Content, or the information, material, products, or Products/Services associated with Third Party Content. Furthermore, some Users may find some Third Party Content to be objectionable, inappropriate, or offensive. We therefore do not make any express or implied warranties with regard to the nature of the information, material, products, or Products/Services that are displayed or linked by any Third Party Content. In addition, your contacts or business dealings with, or participation in the promotions of, individuals or merchants found on or linked by any Third Party Content exist solely and operate independently as between you and such individuals or merchants. You therefore agree that we are not responsible for or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the placement of, or linkage to such Third Party Content.
The Products/Services may provide, or third parties may provide, links to other websites, applications, Products/Services, offers, and/or other resources (collectively, the “Third Party Resources”). Because we have no control over such Third Party Resources, you acknowledge and agree that we are not responsible for the availability of such Third Party Resources and that we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Resources.
14. MIXED-USE GUIDELINES
The Products/Services are made available for your personal, non-commercial use only. You may not employ the Products/Services (other than those Products/Services designed specifically for commercial use as noted above) to sell a product or service, or to increase traffic to your own website or a third party website for commercial reasons, such as advertising sales. You may not take the results from a search of the Products/Services and reformat and display them, or mirror the Website home pages or results pages on your website. Moreover, you may not “meta-search” our Products/Services. If you seek to make commercial use of the Products/Services, you must enter into an agreement with us to do so in advance. In such event, please contact us for more information.
15. NO AUTOMATED QUERYING OF ROUTE OR USER INFORMATION
You may not send automated queries of any sort to the systems and networks we use to provide the Products/Services without our express prior permission. “Sending automated queries" includes, among other things:
• using any software which sends queries to the systems and networks we use to provide the Products/Services that determine how many saved routes or Website users (“Users”) we have for various queries;
• “meta-searching” the Products/Services and the systems and networks we use to provide the Products/Services; and
• performing “offline” searches relative to the Products/Services.
16. MOBILE APPLICATIONS
Wireless Carrier Considerations. To use or otherwise access the Mobile Applications, you must have a mobile device that is compatible with the Products/Services and the Mobile Applications. We do not warrant that the Mobile Applications will be compatible with your mobile device. We do not charge for use of some basic Mobile Applications; however, you may be obligated to pay some fees for use of certain premium Mobile Applications. Further, a wireless carrier's normal messaging, data, and other rates and fees will still apply. You should therefore check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using the Mobile Applications may be prohibited or restricted by your carrier, and not all Mobile Applications may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Applications are available for your mobile device, and what restrictions, if any, may be applicable to your use of the Mobile Applications.
Text and Mobile Messaging Express Consents. By using the Mobile Applications, you expressly agree that we may communicate with you regarding the Products/Services by SMS, MMS, text message, or other electronic means directed to your mobile device and that certain information about your usage of the Mobile Applications may be communicated to us.
In the event you change or deactivate your mobile device telephone number, you agree to promptly update your Account information to ensure that messages are not sent to the person that acquires your old number.
User End Licenses. We hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of a given Mobile Application downloaded directly from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control with your Account. An Account is comprised of the shared resources accessible by a single login ID on one mobile device owned or leased solely by you for your personal use.
You may not:
• modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law;
• rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar Products/Services for any third party;
• make any copies of the Mobile Applications;
• remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or delete the copyright and other proprietary rights notices on the Mobile Applications.
You acknowledge and agree that we may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you employ on your mobile device. You expressly consent to such automatic upgrading on your mobile device, and agree that the Terms (and any additional modifications of the same) will apply to all such upgrades. With respect to any open source or third-party code that may be incorporated in the Mobile Applications, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and we retain all rights, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in the Terms is void.
17. ELECTRONIC COMMUNICATIONS
Your Messages and Responsibilities. The Products/Services may provide you with the ability to send messages and communications to us, our third party service providers, advertisers, and/or other Users. You agree to use communication methods available via the Products/Services only to send communications and materials related to the subject matter for which we have made available the particular communication method, and you further agree that all such communications by you are deemed your User Content and are subject to and governed by the Terms. By using any of the communications methods available via the Products/Services, you acknowledge and agree that (a) all communications methods constitute public, and not private, means of communication between you and the other party or parties, (b) communications sent to or received from third party service providers, advertisers, or other third parties are not endorsed, sponsored, or approved by us (unless expressly stated otherwise), and (c) communications are not pre-reviewed, post-reviewed, screened, archived, or otherwise monitored by us in any manner, though we reserve the right to do so at any time at our sole discretion in accordance with the Terms. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
18. CLAIMS OF COPYRIGHT INFRINGEMENT If you have reason to believe any part of the User Content or Smack Sportswear Content infringes the copyrights of others, please notify our Copyright Agent immediately using the contact information provided below. It is our policy to investigate any allegations of copyright infringement brought to our attention. We reserve the right in our sole discretion to immediately suspend and/or terminate access to the Products/Services by any User who is alleged to have posted infringing materials or a link to infringing materials via the Products/Services and to immediately remove or disable the allegedly infringing materials or link.
If you are the copyright owner (or are authorized to act on behalf of the copyright owner), please notify our Copyright Agent immediately if you believe that (a) any Content displayed on or via the Products/Services infringes your copyright or (b) any link posted via the Products/Services links to materials that infringe your copyright. As soon as we receive your notice of claimed infringement, in the form described below, we will promptly remove or disable access to the materials that are claimed to be infringing (or the subject of infringing activity). Your notice must comply with the Digital Millennium Copyright Act (“DMCA”), be in writing, and must include the following: a description of the copyrighted work you believe has been infringed (or if you believe multiple copyrighted works have been infringed, a representative list); a description of the material you believe is infringing or the subject of infringing activity, together with enough information to permit us to locate the material; enough information to permit us to contact you, such as, your name, address, telephone number and, if available, e-mail address; a statement that you have a good faith belief that the allegedly infringing use of the material was not authorized by the owner of the exclusive right that is allegedly infringed (the “copyright owner”), an agent for the copyright owner, or by law; a statement that all of the information you have provided is accurate; and a statement, made under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner. Your notice must be signed (physically or electronically) and must be addressed as follows:
You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We welcome your comments, feedback, suggestions, and other communications regarding the Products/Services (collectively, “Feedback”). While you are not obligated to provide Feedback, in the event that you provide Feedback, you hereby grant us a worldwide, non-exclusive, transferrable, assignable, sub-licensable, perpetual, irrevocable, fully paid up, royalty-free license to copy, distribute, create derivative works of, publicly display and perform, and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import, and export products and Products/Services based on such Feedback. For this reason, we ask that you not transmit any Feedback that you do not wish to license to us as set forth above.
20. DISCLAIMER OF WARRANTIES AND LIABILITY
THE PRODUCTS/SERVICES AND ANY THIRD-PARTY SOFTWARE, PRODUCTS/SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PRODUCTS/SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. SMACK SPORTSWEAR AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND SUPPLIERS (INCLUDING, WITHOUT LIMITATION, OUR THIRD-PARTY WIRELESS CARRIER PARTNERS) (COLLECTIVELY, THE “SMACK SPORTSWEAR” PARTIES”), DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT.
THE SMACK SPORTSWEAR PARTIES MAKE NO WARRANTY THAT (a) THE PRODUCTS/SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE PRODUCTS/SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS/SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, PRODUCTS/SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS/SERVICES WILL MEET YOUR EXPECTATIONS; AND (e) ANY ERRORS IN THE PRODUCTS/SERVICES WILL BE CORRECTED.
THE SMACK SPORTSWEAR PARTIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MOBILE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCTS/SERVICES, SYSTEMS, NETWORKS OR SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, THE SMACK SPORTSWEAR PARTIES (INCLUDING, WITHOUT LIMITATION, THEIR THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY PERSONAL INFORMATION OR LOCATION INFORMATION OR THE PRODUCTS/SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT SMACK SPORTSWEAR, OR OUR SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION RELATED TO THE PRODUCTS/SERVICES.
YOU EXPRESSLY AGREE THAT WE ARE NOT PROVIDING MEDICAL ADVICE VIA THE PRODUCTS/SERVICES. ALL CONTENT PROVIDED THROUGH THE PRODUCTS/SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (a) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (b) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (c) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTH RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY.
YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON OR VIA THE PRODUCTS/SERVICES, AND YOU SHOULD NOT USE THE PRODUCTS/SERVICES OR ANY CONTENT AVAILABLE THROUGH OR VIA THE PRODUCTS/SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF ANY CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL, OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND ANY OF THE SMACK SPORTSWEAR PARTIES.
YOU EXPRESSLY AGREE THAT YOUR ATHLETIC ACTIVITIES, WHICH GENERATE THE USER CONTENT YOU POST OR SEEK TO POST ON OR VIA THE PRODUCTS/SERVICES (INCLUDING BUT NOT LIMITED TO RUNNING, WALKING, CYCLING, HIKING, TRIATHLON RELATED ACTIVITIES) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY, OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION, OR NEGLIGENCE OF THE SMACK SPORTSWEAR PARTIES OR BY THE ACTION, INACTION, OR NEGLIGENCE OF OTHERS. YOU ALSO EXPRESSLY AGREE THAT SMACK SPORTSWEAR DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY RACE, CONTEST, GROUP ATHLETIC ACTIVITY, OR EVENT THAT UTILIZES THE PRODUCTS/SERVICES.
YOU EXPRESSLY AGREE TO RELEASE THE SMACK SPORTSWEAR PARTIES FROM ANY AND ALL LIABILITY CONNECTED WITH YOUR USE OF THE PRODUCTS/SERVICES (INCLUDING BUT NOT LIMITED TO YOUR PARTICIPATION IN OR ANY ATHLETIC ACTIVITIES), AND PROMISE NOT TO SUE THE SMACK SPORTSWEAR PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DEATH, DAMAGES, OR LOSSES ASSOCIATED WITH YOUR USE OF THE PRODUCTS/SERVICES (INCLUDING BUT NOT LIMITED TO YOUR PARTICIPATION IN OR ANY ATHLETIC ACTIVITIES). YOU ALSO AGREE THAT IN NO EVENT WILL THE SMACK SPORTSWEAR PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (a) YOUR USE OR MISUSE OF THE PRODUCTS/SERVICES, (b) YOUR USE OR MISUSE OF EQUIPMENT OR PROGRAMS CREATED, SOLD, OR LICENSED BY US WHILE ENGAGED IN ATHLETIC ACTIVITIES, (c) YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE PRODUCTS/SERVICES, (d) ANY DELAY OR INABILITY TO USE THE PRODUCTS/SERVICES EXPERIENCED BY YOU, OR (e) ANY INFORMATION, SOFTWARE, PRODUCTS, PRODUCTS/SERVICES, OR CONTENT OBTAINED THROUGH THE PRODUCTS/SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ANY OF THE SMACK SPORTSWEAR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH CASE, THE LIABILITY OF THE SMACK SPORTSWEAR PARTIES WILL BE LIMITED TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
The Smack Sportswear Parties disclaim any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any and all information or material, including Smack Sportswear Content and User Content.
YOU UNDERSTAND AND AGREE THAT WHEN YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA VIA THE PRODUCTS/SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. THE SMACK SPORTSWEAR PARTIES DISCLAIM ANY RESPONSIBILITY FOR ANY HARM TO YOU THAT RESULTS FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL THROUGH THE PRODUCTS/SERVICES.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold the Smack Sportswear Parties harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out: (a) the User Content you Share through the Products/Services; (b) your use of the Products/Services, (c) your athletic activities which generate the User Content you Share or seek to Share via the Products/Services (including, but not limited to, athletic activities in connection with any contests, races, group activities, or other events which we may sponsor, organize, participate in, or where the Products/Services are employed), (d) your connection to the Products/Services, (e) your violation of the Terms, (f) your use or misuse of any User's personal information and location information, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Products/Services to meet another User in-person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
22. LIMITATION OF LIABILITY AND DAMAGES
YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL ANY OF THE SMACK SPORTSWEAR PARTIES (INCLUDING WITHOUT LIMITATION OUR THIRD-PARTY WIRELESS CARRIER PARTNERS) OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF A USER'S PERSONAL INFORMATION AND/OR LOCATION INFORMATION; (B) YOUR USE OF THE PRODUCTS/SERVICES OR THE ABILITY OR INABILITY TO USE THE PRODUCTS/SERVICES; (C) THE PRODUCTS/SERVICES GENERALLY, INCLUDING THE NETWORKS AND SYSTEMS THAT MAKE THE PRODUCTS/SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH US OR ANY OTHER USER OF THE PRODUCTS/SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL ALSO APPLIES WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER PRODUCTS/SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE PRODUCTS/SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED WITH THE PRODUCTS/SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE PRODUCTS/SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN CONNECTION WITH THE PRODUCTS/SERVICES. THIS LIMITATION ALSO APPLIES, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR PRODUCTS/SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION FURTHER APPIES WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS/SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO THE PRODUCTS/SERVICES. SUCH LIMITATION APPLIES NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Without limiting the foregoing, under no circumstances will any of the Smack Sportswear Parties be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond their reasonable control, including, without limitation, Internet failures, computer equipment or security failures, telecommunication equipment failures, other equipment failures, hacking, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
IN NO EVENT WILL ANY OF THE SMACK SPORTSWEAR PARTIES’ (INCLUDING WITHOUT LIMITATION OUR THIRD-PARTY WIRELESS CARRIER PARTNERS) OR SUPPLIERS’ TOTAL LIABILITY (IN THE AGGREGATE) TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR EMPLOYMENT OF THE PRODUCTS/SERVICES WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE PRODUCTS/SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE THOUSAND DOLLARS ($1000.00), WHICHEVER IS GREATER.
YOU FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDNIGLY, THE EXCLUSIONS, AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY IN THEIR ENTIRETY TO YOU. YOU AGREE, HOWEVER, THAT OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree that we may, under certain circumstances and without prior notice, immediately terminate your Account and/or access to the Products/Services. Cause for such termination includes, but is not limited to, (a) real or suspected breaches or violations of the Terms, other incorporated agreements, Guidelines, and/or additional terms, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated Account deletions), (d) discontinuance or material modification to the Products/Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) nonpayment of any fees owed by you in connection with the Products/Services. Termination of your Account may include (x) removal of access to all offerings within the Products/Services, (y) deletion of your User Data, personal information, files and User Content associated with or inside your Account, and (z) barring of further use of the Products/Services. Further, you agree that all terminations for cause will be made in our sole discretion and that we are not liable to you or any third party for any termination of your Account or access to the Products/Services.
24. APPLICABLE LAWS, ARBITRATION, CLASS ACTION WAIVER AND SURVIVAL
U.S. Usage, Consent, and Export Controls. We control and operate the Products/Services from our offices within the United States of America. We do not make any representation that User Content, Smack Sportswear Content, or the Products/Services are appropriate or available for use in other locations, and access to them from territories where the content or use of the Products/Services is illegal is prohibited. Those who choose to access the Products/Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. If you use the Products/Services outside the United States, you expressly agree to the transfer and processing of any information we collect wherever we may have operations. You may not use or export the Smack Sportswear Content or User Content in violation of U.S. export laws and regulations.
Dispute Resolution and Class Action Waiver. Any and all disputes, claims and causes of action arousing out of or relating to the Products/Services, Smack Sportswear Content, User Content, usage of User Data, personal information, or location information, or the Terms will be resolved individually, without resort to any form of class action, and will be arbitrated and governed by California law and controlling U.S. federal law as applicable, without regard to conflicts of laws as set forth more fully below.
Governing Law. The Terms and the relationship between you and us is be governed by the laws of the state of California, and federal law as applicable, without regard to the conflict of law provisions of the state of California.
Individual, Confidential Arbitration. You and we agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Products/Services under the rules of the American Arbitration Association. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration. Any such arbitration between you and us, to the extent necessary, will be conducted in Los Angeles, California, and you waive any right to claim that such location is an inconvenient forum. You covenant not to sue us in any other forum.
The arbitration will be conducted in the English language. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association, as modified herein. You and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (b) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Products/Services:
• YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
• YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
• YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.
Only if this arbitration provision is deemed to be null and void, then all disputes arising between you and us under the Terms will be subject to the exclusive jurisdiction of the state and federal courts located in or having jurisdiction over Los Angeles, California, and you and we hereby submit to the personal jurisdiction and venue of these courts.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of the Terms or your use of the Products/Services. The Terms constitute the entire agreement between you and us with respect to your use of the Products/Services. Our failure to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You may not assign, delegate, or otherwise transfer your Account or your obligations under these Terms without our prior written consent. We have the right, in our sole discretion, to transfer or assign all or any part of our rights under these Terms and will have the right to delegate or use third party contractors to fulfill our duties and obligations under these Terms and in connection with the Products/Services. Our notice to you via email, regular mail, or notices or links displayed in connection with the Products/Services constitutes acceptable notice to you under the Terms. Notice will be deemed received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Products/Services, then it will be deemed received twenty-four hours after it is first displayed.
Termination of your Account and/or termination of your access to our Products/Services shall not affect any of the rights or obligations as set forth in these Terms (including, without limitation, those set forth in Sections 5, 8, 20, 21, 22, 24, and 25), which rights and obligations shall survive said termination.
Sections 5, 8, 20, 21, 22, 24, and 25 will survive termination of your Account and/or the Terms.
©2015, Smack Sportswear, All Rights Reserved.