Terms Of Service
11. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
(a) DISCLAIMER OF WARRANTIES. WE PROVIDE THE WEBSITE, THE PRODUCTS, AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS, THE WEBSITE, THE SERVICES, THEIR USE, AND ANY INFORMATION ON CONTAINED THEREIN: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OF OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. WE MAKE NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR CAUSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
(b) DISCLAIMER OF FORWARD-LOOKING STATEMENTS. THIS WEBSITE MAY CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT OUR CURRENT EXPECTATION REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENT. THE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH ARE OUTSIDE OUR CONTROL.
(c) HEALTH-RELATED INFORMATION. WE PROVIDE INFORMATION ON THE WEBSITE FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT MEANT AS A SUBSTITUTE FOR THE ADVICE OF A DOCTOR OR OTHER HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE THE INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE FOR DIAGNOSING OR TREATING A MEDICAL CONDITION. YOU SHOULD CAREFULLY READ ALL PRODUCT INSTRUCTIONS PRIOR TO USE.
(d) PRODUCTS. ALL PRODUCTS ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS, AND SUPPLIERS, IF ANY, PROVIDED IN THE PRODUCT PACKAGING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR CAUSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NONCOMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
(e) EXCLUSION OF DAMAGES. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE WEBSITE OR PRODUCTS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
(f) LIMITATION OF LIABILITY. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS TOS, INCLUDING, WITHOUT LIMITATION, CLAIMS RELATING TO THE WEBSITE OR THE PRODUCTS, EXCEED THE GREATER OF $100 OR THE AMOUNT THAT YOU PAID FOR THE PRODUCTS. NOTWITHSTANDING ANYTHING IN THIS TOS TO THE CONTRARY, THIS DISCLAIMER OF WARRANTY, EXCLUSIONS, AND LIMITATIONS DO NOT APPLY IN NEW JERSEY.
12. Force Majeure.
You acknowledge and understand that if the Website is unable to provide the Products as a result of a force majeure event, the Website will not be in breach of any of its obligations toward you under these TOS. A force majeure event means any event beyond the control of the Website. THE WEBSITE SHALL NOT HAVE ANY LIABILITY TO YOU, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR FAILING TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT TO THE EXTENT THAT SUCH FAILURE IS AS A RESULT OF A FORCE MAJEURE EVENT. THIS SECTION SHALL NOT APPLY IN THE STATE OF NEW JERSEY.
13. Domestic Use and Export Restriction.
We control the Website from our offices within the United States of America. We make no representation that the Website or its content (including, without limitation, any products or services available on or through the Website) are appropriate or available for use in other locations. Users who access the Website from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Website may be downloaded in violation of United States law.
14. Arbitration and Waiver of Class Action Rights.
This TOS and any issue or dispute arising out of or otherwise related to this TOS or your use of our Website, the Privacy Policy, or any matter concerning SportsSmart including use and purchase of any product and enrollment in the MVP Membership Program, collectively “Disputes,” shall be governed exclusively by the laws of the State of California, excluding its conflict of law provisions. If a Dispute arises, we agree to first contact each other with a written description of the Dispute, all relevant documents and information, and the proposed resolution. You agree to contact us with Disputes by emailing us at info@SportsSmart.net. SportsSmart will contact you by letter to the billing address you provided us.
If any Dispute cannot be resolved informally, we each agree that any and all Disputes, other than those filed in small claims court, shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association ("AAA") in a location convenient to you. Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. We will pay all of the filing costs, including arbitrator fees. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state of California: (i) any dispute, controversy, or claim relating to or contesting the validity of the our proprietary rights, including without limitation, trademarks, service marks, copyrights, or trade secrets; or (ii) an action by a party for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief. You expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.
15. Modification of Terms of Service.
We reserve the right to change or modify these TOS at any time, with or without notice, and your continued use of the Website will be conditioned upon the TOS in force at the time of your use. You can always check the most current version of the TOS at this page.
16. Termination.
We maintain the right to terminate your access to the Website if we reasonably believe you have breached any of the TOS. Following termination, you will not be permitted to use the Website and we may, in our sole discretion, cancel any outstanding Product orders. If your access to the Website is terminated, we reserve the right to exercise whatever means we deem necessary to prevent unauthorized access to the Website, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet Service Provider. This TOS will survive indefinitely unless and until we choose to terminate it, with or without notice, regardless of whether any account or order you open is terminated by you or us, or if you have the right to access or use the Website.
17. Integration.
This TOS contains the entire understanding between you and us regarding the use of the Website, and supersedes all prior and contemporaneous agreements and understandings between you and us relating thereto.
18. Additional Terms.
These TOS, and all of your rights and obligations under them, may not be assigned or transferred by you without our prior written consent. No failure or delay by a party in exercising any right, power, or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof, or the exercise of any other right, power, or privilege under this TOS. You are an independent contractor, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.
