PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND SERVICES. IF YOU DO NOT AGREE WITH ANY OF OUR TERMS, DO NOT USE THE SITE.
WE URGE YOU TO READ THESE TERMS CAREFULLY, AS THEY INCLUDE LIMITATIONS OF LIABILITY, ARBITRATION OF DISPUTES, A WAIVER OF CLASS ACTIONS AND OTHER PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS.
Introduction and Overview
In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and conditions will apply to your use of the Site or to a service or product offered via the Site (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
Table of Contents
- Site Content, Ownership, Limited License and Rights of Others
- Content You Submit and User Content Rules
- Site and Content Use Restrictions
- Opening and Terminating Accounts
- Procedure for Alleging Copyright Infringement
- Procedure for Alleging Infringement of Other Intellectual Property
- Notices, Questions and Customer Service
- Terms Applicable to Purchases on the Site
- Links by You to the Site
- Third-Party Sites; Advertisements; Dealings with Third Parties
- Dispute Resolution
- Disclaimer of Representations and Warranties
- Limitations of our Liability
- Waiver of Injunctive or Other Equitable Relief
- General Provisions
- Content. The Site contains a variety of: (i) materials and other items relating to Modells Sporting Goods and its products and services, including all text, images, designs, illustrations, photographs, audio and video clips, music, interactive features, the “look and feel” of the Site, and the compilation, assembly, and arrangement of the materials of the Site and any and all copyrightable material; (ii) trademarks, logos, trade names, service marks, brand elements and trade identities of various parties, including those of Modells Sporting Goods (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
- Ownership. The Site and the Content are owned and/or controlled by Modells Sporting Goods and our licensors and other third parties. All right, title, and interest in and to the Content is the property of Modells Sporting Goods or our licensors or other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible.
- Limited License. Subject to your strict compliance with these Terms and any Additional Terms, Modells Sporting Goods grants you a limited, non-exclusive, revocable, non-assignable, and non-transferable license to download, display, view, use, and/or play the Content on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”), and/or print a copy of the Content for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Modells Sporting Goods’ sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
- Rights of Others. In using the Site, you must respect the intellectual property and other rights of Modells Sporting Goods and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Modells Sporting Goods respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Site, then please see Section 5 and Section 6 below.
- User Content
- General. Modells Sporting Goods may now or in the future offer users of the Site the opportunity to submit, post, upload and display, on or through the Site text, images, graphics, photos, comments, responses, videos, ratings, reviews, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User Content”). Modells Sporting Goods may allow you to do this through forums, blogs, message boards, social media sites, email, and other Site functionality. Subject to the rights you grant in these Terms, you retain whatever right, title, and interest that you have in your User Content and you remain ultimately responsible for it.
- License to Modells Sporting Goods of Your User Content. Except as otherwise described in any applicable Additional Terms, you grant to Modells Sporting Goods the non-exclusive, unconditional, unlimited, worldwide, perpetual, irrevocable, and cost-free right and license to use, copy, exploit, record, distribute, reproduce, disclose, sell, sublicense, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content, for any purpose whatsoever, in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise and promote the same. Without limitation, the granted rights include the right to: (a) host, store, digitize, edit and remove such User Content and combine with other materials, (b) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services, and (c) the right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or payment to you. Except as prohibited by law, you hereby waive any moral rights that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive anything for any of the rights granted to us in this Section 2(A)(iii).
- Modells Sporting Goods’ Exclusive Right to Manage our Venue. Modells Sporting Goods may, but will not have any obligation to, review, monitor, post, store, maintain or otherwise make use of, any of your User Content, and Modells Sporting Goods may, in its sole discretion, reject, delete, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, violent, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, the content restrictions set forth below in the Rules. Such User Content submitted to us need not be maintained on the Site by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the Site or elsewhere.
- Representations and Warranties Related to Your User Content. Each time you submit any User Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you submit, and that, as to that User Content: (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to submit the User Content and grant Modells Sporting Goods the rights to it that you are granting by these Terms and any Additional Terms, all without any Modells Sporting Goods obligation to obtain consent of any third party and without creating any obligation or liability of Modells Sporting Goods; (b) the User Content is accurate; (c) the User Content does not and, as to Modells Sporting Goods’ permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
- Enforcement. Modells Sporting Goods has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content as we deem necessary.
- User Content Rules. As a user of the Site, these User Content Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Site’s rating or review functionality, blogs and similar places where you can post User Content on the Site.
- Don’t Damage the Site or Anyone’s Computers or Other Devices. Your User Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Site or any computer or other Device.If you submit User Content that Modells Sporting Goods believes violates these Rules, then we may, in our sole discretion, take any legally available action that we deem appropriate. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User Content in question being removed from the Site.
- You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
- Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to: firstname.lastname@example.org. For alleged infringements of intellectual property rights, see Section 5 and Section 6, below.
3. Site and Content Use Restrictions
- Site Use Restrictions. You agree that you will not: (i) aside from your purchase of goods or services offered for sale on the Site, if any, use the Site for any political or commercial purpose (including, for purposes of advertising, soliciting funds, collecting product prices and selling products); (ii) use any Modells Sporting Goods Trademarks; (iii) engage in any activities through or in connection with the Site that attempts to do harm to any third party or are unlawful, offensive, obscene, violent, threatening, or abusive, or that violate any right of any third party, or are otherwise objectionable to Modells Sporting Goods; (iv) engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Modells Sporting Goods, or other users of the Site; (v) interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site, the Content, or the User Content; (vi) spider or harvest or otherwise collect or store any information (including personal information about other users of the Site without the express consent of such users); (vii) attempt to gain unauthorized access to the Site, other computer systems or networks connected to the Site, through password mining or any other means; or (viii) otherwise violate these Terms or any Additional Terms.
- Content Use Restrictions. You also agree that, in using the Site: (i) you will not monitor, gather, mine, copy or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Site by any automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text or page layout); (iii) you will keep intact all Trademark, copyright and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, create derivative works from, display, distribute, broadcast, or transfer to any third party or on any third-party application or web site, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of Modells Sporting Goods; and (vii) you will not insert any code or materials to manipulate such Content in any way that adversely affects any user experience.
- Availability of Site and Content. Modells Sporting Goods may immediately suspend or terminate the availability of the Site and Content (and any elements and features of them), in whole or in part, for any reason, in Modells Sporting Goods’ sole discretion, and without advance notice or liability.
- Eligibility. You must be at least 13 years old to use the Site. If you are under the age of majority in your state of residence, a minor, your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Site with permission from your parent or legal guardian.
- Reservation of All Rights Not Granted as to Content and Site. All rights not expressly granted to you are reserved by Modells Sporting Goods and its licensors and other third parties. Any unauthorized use of any Content or the Site for any purpose is prohibited.
- If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or email address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive (We may reject the use of any password, username or email address for any reason in our sole discretion); (ii) You will provide accurate, current and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current and complete; (iii) You are solely responsible for all activities that occur under your account, password and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Site using your name, username or password; and (v) You will immediately notify us of any unauthorized use of your account, password or username, or any other breach of security.
- If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
5. Procedure for Alleging Copyright Infringement
- DMCA Notice. Modells Sporting Goods will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice that includes all of the following: (i) a legend or subject line that says: “DMCA Copyright Infringement Notice”; (ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Site on which the material appears); (iv) your full name, address, telephone number and email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and (vii) your electronic or physical signature.
Modells Sporting Goods will only respond to DMCA Notices that it receives by mail or email as follows:
Modells Sporting Goods Online, Inc., 1680 Michigan Ave, Ste 700, Miami Beach, FL 33139
It is often difficult to determine if your copyright has been infringed. Modells Sporting Goods may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Modells Sporting Goods may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting Modells Sporting Goods’ other rights, Modells Sporting Goods may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and any other web site owned or operated by Modells Sporting Goods. See Section 4, above.
2. Counter-Notification. If access on the Site to a work that you submitted to Modells Sporting Goods is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses set forth in Section 5A above. Your DMCA Counter-Notification should contain the following information: (i) a legend or subject line that says: “DMCA Counter-Notification”; (ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Site from which the material was removed or access to it disabled); (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iv) your full name, address, telephone number, email address and the username of your account; (v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the United States, to the jurisdiction of the United States District Court for the Northern District of Texas), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and (vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Site. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
6. Procedure for Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice to the addresses set forth above that includes all of the following: (a) a legend or subject line that says: “Intellectual Property Infringement Notice”; (b) a description of the intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Site on which the material appears); (d) your full name, address, telephone number, and email address; (e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law; (f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and (g) your electronic or physical signature. We will act on such notices in our sole discretion. Any user of the Site that fails to respond satisfactorily to Modells Sporting Goods with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
7. Notices, Questions and Customer Service
You agree that: (i) we may give you notices of new, revised or changed Terms and other important matters by posting notice on the Site, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address. When you communicate with us electronically, such as via email or text message, you consent to receive communications from us electronically. All legal notices to us must be sent to: Modells Sporting Goods Online, Inc., Attn: Legal Department, 1680 Michigan Ave, Ste 700, Miami Beach, FL 33139.
If you have a question regarding using the Site, you may contact Modells Sporting Goods Customer Support by sending an email to: email@example.com. We will try to promptly respond to all inquiries but are not obligated to do so. You acknowledge that the provision of customer support is at Modells Sporting Goods’ sole discretion and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
8. Terms Applicable to Purchases on the Site
- Generally. No online purchases are available for Canadian residents. Prior to the purchase of any goods or services on our Site, unless you pay through an alternative payment method that we accept on the Site, you must provide a valid credit card number and associated payment information, including all of the following: (i) your name as it appears on the credit card; (ii) your credit card number; (iii) the credit card type; (iv) the date of expiration; and (v) any activation numbers or codes needed to charge your credit card. By submitting that information to us, you hereby agree that you authorize us to charge your card at our convenience but within thirty (30) days of credit card authorization. For each purchase made on the Site, you agree to pay the price applicable (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. We or our payment processer will automatically bill your credit card or other form of payment submitted as part of the order process for such price.
- Return Policy and Shipping and Delivery Policy. If you are not fully satisfied with a purchase from the Site, you may return it in the item’s original packaging within thirty (30) days of delivery. Additional restrictions may apply. Please see our Return Policy, which is incorporated into these Terms in its entirety by this reference. Except in the instance we offer free shipping as a promotional offering on the Site, for online purchases made on the Site, shipping fees will be charged in accordance with our Shipping and Delivery Terms.
- Methods of Payment, Credit Card Terms and Taxes. All payments must be made by Visa, MasterCard, Discover, American Express. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this through the acceptance of additional forms of payment on our checkout functionality on the Site. You agree that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Modells Sporting Goods of any discrepancies within forty-five (45) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Modells Sporting Goods does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Modells Sporting Goods or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including sales, use or value-added taxes.
- Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of an offer from us. Modells Sporting Goods reserves the right at any time after receipt of your order to accept or decline your order for any reason. Modells Sporting Goods further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Modells Sporting Goods upon our delivery of products or services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with Modells Sporting Goods has been effected until you receive a confirmation from Modells Sporting Goods via email or the Site. As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your credit card account was received.
- No Responsibility to Sell Mispriced Products or Services. We do our best to describe every item, product or service offered on the Site as accurately as possible. However, we do not warrant that specifications or pricing on the Site is complete, accurate, reliable, current, or error-free. In the event of any errors, inaccuracies, or omissions relating to the pricing or specifications of any item, product or service, Modells Sporting Goods shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional terms may apply. If a product you purchased from us is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
- Modifications to Prices or Billing Terms. The purchase of products and services on the Site is subject to availability. PRODUCTS AND SERVICES DISPLAYED ON THE SITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. Modells Sporting Goods RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY EMAIL DELIVERY TO YOU.
9. Links by You to the Site
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Site, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your web site do not suggest any affiliation with Modells Sporting Goods or cause any other confusion, and (c) the links and the content on your web site do not portray Modells Sporting Goods or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, violent, threatening, or abusive, or that violate any right of any third party or are otherwise objectionable to Modells Sporting Goods. Modells Sporting Goods reserves the right to suspend or prohibit linking to the Site for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
10. Third-Party Sites; Advertisements; Dealings with Third Parties
- Third-Party Content and Sites; Advertisements. The Site may contain links to third-party web sites that are not owned, controlled or operated by Modells Sporting Goods, and the Site may also include links to third-party ads on the Site or otherwise, to or from third-party web sites (collectively, “Third-Party Sites”), including web sites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Modells Sporting Goods. Modells Sporting Goods may have no control over the content, operations, policies, terms or other elements of Third-Party Sites, and Modells Sporting Goods does not assume any obligation to review any Third-Party Sites. Furthermore, Modells Sporting Goods is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Modells Sporting Goods will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third-Party Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Sites. Modells Sporting Goods disclaims all liability in connection therewith.
- Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Site (including on or via Third-Party Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Modells Sporting Goods disclaims all liability in connection therewith.
- Wireless Features. The Site may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Site’s features and upload content to the Site, receive messages from the Site, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Contact your carrier with questions regarding these issues.
- Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Site for Wireless Features, then you agree to notify Modells Sporting Goods of any changes to your wireless contact information (including phone number) and update your accounts on the Site to reflect the changes. Please review our SMS Terms and Conditions, available here, which are incorporated into these Terms by this reference.
12. Dispute Resolution
Certain portions of this Section 12 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Modells Sporting Goods agree that we intend that this Section 12 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 12 can only be amended by mutual agreement.
Binding Arbitration. Except as set forth below, you and we agree that we will resolve any disputes between us (including any disputes between you and a third-party agent of ours) through binding and final arbitration instead of through court proceedings. ALL DISPUTES MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE THEN-CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), except as modified herein, and in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. The arbitration will be administered by the AAA. The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and Modells Sporting Goods agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act (“FAA”) shall govern the arbitrability of all disputes, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY ARBITRATION DISPUTE HEARD BY A JUDGE OR JURY. Issues relating to the enforceability of the arbitration and class action waiver provisions are to be decided only by a court of competent jurisdiction, and not by the arbitrator. This arbitration provision shall survive termination of these Terms or the Site. You can obtain AAA procedures, rules, and fee information as follows: 800.778.7879 and http://www.adr.org. If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms. This Section of the Terms will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
- Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE TO THE OTHER PARTY) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
- Injunctive Relief. The foregoing provisions of this Section 12 will not apply to any legal action taken by Modells Sporting Goods to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your User-Generated Content and/or Modells Sporting Goods’ intellectual property rights (including such we may claim that may be in dispute), Modells Sporting Goods’ operations, and/or Modells Sporting Goods’ products or services. Notwithstanding anything to the contrary herein, the arbitrator may award to you in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief (which may include public injunctive relief), as if the action were brought in court on an individual basis.
- No Class Action Matters. YOU AND Modells Sporting Goods AGREE THAT WITH RESPECT TO DISPUTES EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. All disputes will be heard or arbitrated only on an individual basis and will not be joined or consolidated with any other claims or arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Arbitration Dispute to be arbitrated on a class action basis or on any basis involving disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that the restriction set forth in this Section 12(D) is unconscionable or unenforceable, then our agreement in Section 12(A) to arbitrate will not apply and the Arbitration Dispute must be brought exclusively in court pursuant to Section 12(F). Notwithstanding any other provision of this Section 12, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this “No Class Action Matters” section, are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
- Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claims of disputes in small claims court of competent jurisdiction.
- Federal and State Courts in Tarrant County, Texas. Except to the extent that arbitration is required in Section 12(A), small claims actions, or with respect to the enforcement of any arbitration decision or award with respect to an Arbitration Dispute, any action or proceeding relating to the Site and/or these Terms may only be instituted in state or Federal court in Tarrant County, Texas. Accordingly, you and Modells Sporting Goods consent to the exclusive personal jurisdiction and venue of such courts for such matters, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
13. Disclaimer of Representations and Warranties
YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE, INCLUDING THE CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Modells Sporting Goods and its subsidiaries and affiliates, and each of its and their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors and assigns (collectively, “Modells Sporting Goods Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to: (a) the Site (including the Content and the User Content); (b) the functions, features, or any other elements on, or made accessible through, the Site; (c) any products, services or instructions offered or referenced at or linked through the Site; (d) security associated with the transmission of your User Content transmitted to Modells Sporting Goods or via the Site; (e) whether the Site or the servers that make the Site available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device); (f) whether the information (including any instructions) on the Site is accurate, complete, correct, adequate, useful, timely or reliable; (g) whether any defects to or errors on the Site will be repaired or corrected; (h) whether your access to the Site will be uninterrupted; (i) whether the Site will be available at any particular time or location; and (j) whether your use of the Site is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED IN THESE TERMS OR IN ADDITIONAL TERMS PROVIDED BY A Modells Sporting Goods PARTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Modells Sporting Goods PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Modells Sporting Goods AND THE Modells Sporting Goods PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE.
YOU UNDERSTAND AND AGREE THAT THE PRODUCTS PURCHASED THROUGH THIS SITE ARE NOT DESIGNED AND/OR TESTED FOR COMMERCIAL AND/OR INSTITUTIONAL USE, AND AS A RESULT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Modells Sporting Goods MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH PRODUCTS QUALITY AND/OR SUITABILITY FOR COMMERCIAL AND/OR INSTITUTIONAL USES.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
14. Limitations of our Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY Modells Sporting Goods PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages of any kind that are directly or indirectly related to: (a) the Site (including the Content and the User Content); (b) your use of or inability to use the Site or the performance of the Site; (c) any action taken in connection with an investigation by Modells Sporting Goods Parties or law enforcement authorities regarding your access to or use of the Site; (d) any action taken in connection with copyright or other intellectual property owners or other rights owners; (e) any errors or omissions in the Site’s technical operation or content; or (f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction. The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Modells Sporting Goods Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure or destruction of the Site).Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Modells Sporting Goods PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID Modells Sporting Goods IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S).
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254. Their web site is located at: http://www.dca.ca.gov.
15. Waiver of Injunctive or Other Equitable Relief
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS SET FORTH HEREIN, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEB SITE, APPLICATION, CONTENT, USER CONTENT, PRODUCT, SERVICE OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY Modells Sporting Goods OR A LICENSOR OF Modells Sporting Goods.
16. General Provisions
- Updates to Terms. AS OUR SITE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SITE MAY BE MODIFIED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. You should frequently check these Terms for updates. You can reject any new, revised or Additional Terms by discontinuing use of the Site and related services.
- Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of law provisions.
- Indemnity. To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold the Modells Sporting Goods Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Modells Sporting Goods Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the Site and your activities in connection with the Site; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Modells Sporting Goods Parties’ use of the information that you submit to us (including your User Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Modells Sporting Goods Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Modells Sporting Goods Parties retain the exclusive right to settle, compromise and pay any and all Claims and Losses. Modells Sporting Goods Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Modells Sporting Goods Party.
- Operation of Site; Availability of Products and Services; International Issues. Modells Sporting Goods controls and operates the Site from its U.S.-based offices, and Modells Sporting Goods makes no representation that the Site is appropriate or available for use outside the U.S. or Canada, as applicable. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available to be purchased only in the U.S. and may not be available worldwide. We reserve the right to limit the availability of the Site and/or the provision of any product, service or other feature described or available on the Site to any person, entity, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any product, service or other feature that we provide. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods purchased from the Site.
- Severability; Interpretation. If any provision of these Terms, is for any reason deemed invalid, unlawful, void or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect). To the extent permitted by applicable law, you waive any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms, the word will be deemed to mean “including, without limitation,”.
- Investigations; Cooperation with Law Enforcement; Termination; Survival. Modells Sporting Goods reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms and any Additional Terms; (iii) investigate any information obtained by Modells Sporting Goods in connection with reviewing law enforcement databases or complying with criminal laws; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; (v) prosecute violators of these Terms and any Additional Terms; and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Modells Sporting Goods under these Terms or any Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Modells Sporting Goods, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Modells Sporting Goods in these Terms, as well as the indemnities, releases, disclaimers and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action and mandatory arbitration.
- Assignment. Modells Sporting Goods may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Modells Sporting Goods.
- No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or Modells Sporting Goods in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy; and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
- Patents. One or more patents may apply to this Site and/or certain activities provided via the Site, including U.S. Patent 6,091,956.