LICENSE AGREEMENT
AND
TERMS OF USE
YOUR USE
OF THIS EPIC SPORTS AND ITS AFFILIATES (collectively "EPIC", "us", "our", or
"we") MOBILE APP, WEBSITES, CONTESTS, SERVICES, AUTOMATED
CHATBOTS, ONLINE CHAT FEATURES, EMAIL AND/OR TEXTING, OR SOFTWARE
(Hereinafter "SITES") IS YOUR UNCONDITIONAL
ACCEPTANCE OF THE FOLLOWING TERMS. IF YOU DO NOT FULLY ACCEPT OR UNDERSTAND
THESE TERMS, DO NOT USE OR ACCESS EPIC "SITES" AND OPT OUT IMMEDIATELY.
NOTICE REGARDING DISPUTE RESOLUTION AND WAIVER OF JURY TRIAL: THESE TERMS
CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND EPIC (OR ANY MEMBER OF THE
EPIC FAMILY OF BUSINESSES) HAVE AGAINST EACH OTHER RELATING TO THE "SITES" ARE RESOLVED
INCLUDING OBLIGATIONS TO ARBITRATE DISPUTES, WHICH WILL, SUBJECT TO LIMITED
EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING
ARBITRATION, THESE PROVISIONS INCLUDE EACH PARTY'S WAIVER OF THE RIGHT TO A
JURY TRIAL.
Please read this carefully. It affects your rights.
Any and or All dispute(s) or claim(s) relating in any way to your use of or
interaction with EPIC or its advertising to you or communications with you,
(including but not limited to calling, texting, emailing, customer service,
advertising, products, services, website, or mobile app) will be resolved by
binding arbitration, rather than court.
This agreement to arbitrate is intended to be broadly
interpreted, and expressly includes claims brought under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 et seq., or any other statute, regulation, or
legal or equitable theory. You and EPIC hereby agree that the Federal
Arbitration Act, 9 U.S.C. 1, et seq. ("FAA") applies to this
agreement to arbitrate and governs all questions of whether a dispute is
subject to arbitration. Unless you and we agree otherwise in writing, arbitration
shall be administered by the American Arbitration Association's Consumer
Arbitration Rules in effect at the time of filing of the arbitration (the
"AAA's Rules"). However, just as a court would, the arbitrator or
arbitrators must honor the terms and limitations in this Agreement and can
award damages and relief (including any attorneys' fees) authorized by law
and/or the AAA's Rules. The arbitration decision and award is
final and binding, with some exceptions under the FAA, and judgment on the
award may be entered in any court of competent jurisdiction. YOU AGREE
THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND EPIC ARE EACH WAIVING THE RIGHT
TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN ANY CLASS, REPRESENTATIVE,
OR COLLECTIVE PROCEEDING.
THIS AGREEMENT DOES NOT ALLOW FOR CLASS ARBITRATIONS
EVEN IF THE PROCEDURES OR RULES OF THE AAA WOULD. RATHER, YOU AND WE ARE ONLY
ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL, BILATERAL BASIS. FURTHER, AND
UNLESS YOU AND EPIC SPORTS, INC AGREE OTHERWISE IN WRITING, THE ARBITRATOR(S)
MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY'S CLAIMS WITH ANY OTHER
PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE
OR COLLECTIVE PROCEEDING.
You and EPIC are each responsible for our respective
costs relating to counsel, experts, and witnesses, as well as any other costs
relating to the arbitration. Epic, however, will pay for the arbitration
administrative or filing fees, including the arbitrator and/or other AAA case
management fees, for any claim seeking $75,000 or less, unless the claim is
determined by the arbitrator to be frivolous. Otherwise, the AAA's Rules
regarding costs and payment apply.
This agreement to arbitrate does not preclude you from
bringing issues to the attention of federal, state, or local agencies. Such
agencies can, if the law allows, seek relief against us on your behalf.
If any term of this Section (Arbitration and Class
Action Waiver) is to any extent illegal, otherwise invalid, or incapable of
being enforced, such term shall be excluded to the extent of such invalidity or
unenforceability; all other terms hereof shall remain in full force and effect;
and, to the extent permitted and possible, the invalid or unenforceable term
shall be deemed replaced by a term that is valid and enforceable and that comes
closest to expressing the intention of such invalid or unenforceable term. If
application of this Severability provision should materially and adversely
affect the economic substance of the transactions contemplated hereby, the
Party adversely impacted shall be entitled to compensation for such adverse
impact, provided the reason for the invalidity or unenforceability of a term is
not due to serious misconduct by the Party seeking such compensation.
Changes to Terms
These Terms and Conditions are subject to change at
any time without notice and become effective immediately.
1. Additional Terms. Certain
provisions of these Terms may be superseded by expressly designated legal
notices, rules or other terms located on particular pages
of a Site (the "Additional Terms"), including contests,
sweepstakes, promotions, or other similar features and the terms of our mobile
applications, automated chatbots, online chat features, email, texting and
email. Your use of such pages or download or use of our mobile application,
registration, use of our team sports or event Sites or creation of an account
for one of our team sports or event Sites we host on behalf of a national,
state or local sports governing body, league, club, team or other organization
(each, an "Organization") confirms your unconditional acceptance of the
Additional Terms. If these Terms conflict with such Additional Terms, such
Additional Terms shall govern and apply to your use of that portion of a Site;
however the arbitration provisions in Section 22 of these Terms shall apply to
the Additional Terms. Use of our mobile applications and our team sports or
event Sites are also subject to the terms of the separate license agreements
for such Sites as found on such Sites and may be subject to separate terms
entered into by the applicable Organization, which are in addition to these
Terms.
2. Privacy. Our Privacy
Policy applies to your access and use of the
Sites, including any personal information provided via the Sites or via any
other aspect of the Sites. The terms and conditions of our Privacy
Policy are hereby incorporated by reference
into these Terms. In addition, the Privacy Policy is subject to the terms and
conditions of these Terms and in the event of conflict between these Terms and
the Privacy Policy, these Terms shall govern and prevail. The Sites are not
intended for residents of or visitors from or located in countries that are
subject to the General Data Protection Regulation ("GDPR").
3. Use of the Sites and License.
The Sites are general purpose sites and are not targeted towards children under
the age of thirteen (13). By accessing or using the Sites, including by
registering an account on a Site, you represent and warrant that you are
eighteen (18) years of age or older (or age of majority if higher in your place
of residence) and are not a resident of or located in the European Economic
Area or any other country subject to the GDPR. If you are under the age of
eighteen (18) or age of majority if higher in your
place of residence, you should use the Sites only with the involvement of a
parent or guardian. Subject to your compliance with these Terms, We grant you a personal, non-exclusive, non-transferrable,
limited privilege to access and use the Sites solely for your personal,
non-commercial use. This privilege does not include any resale or commercial
use of the Sites. We may revoke your access and use of a Site at any time
(including if you violate these Terms), and nothing herein constitutes a
representation that the Sites will be available to you for your access or use.
4. Restrictions on Use of the
Sites. You agree that you will access and use the Sites only in a lawful
manner and only in accordance with these Terms. Additionally, you agree that
you will not:
a. Gain access, or attempt to gain
access, to any portion of a Site, or any systems or networks connected to a
Site, by hacking, password mining or any other illegitimate or unlawful means;
b. Create or maintain any link from
another website to any page on a Site without EPIC prior written permission;
c. Run or display a Site (or any
material on a Site) in frames or through similar means on another site,
application or location, without EPIC prior written permission;
d. Modify the information or
materials located on a Site in any way or reproduce or publicly display,
perform, or distribute or otherwise use any such materials for any public,
non-personal or commercial purpose;
e. Use any deep-link, page-scrape,
robot, spider, website search application or other automatic device, program or
methodology, or any similar or equivalent manual process, to access, copy,
retrieve, monitor, mirror, reproduce or index a Site, or any portion of a Site;
f. Collect any data or
information regarding users and/or devices, including usernames, personal
information, preferences, email addresses or accounts;
g. Create or transmit unsolicited
electronic communications, such as spam, use any device, software or routine to
interfere or attempt to interfere with the proper working of a Site, or
otherwise interfere with users' enjoyment of a Site;
h. Transmit or upload to a Site any
item containing or embodying any virus, worm, defect, trojan horse, software
bomb or other harmful or malicious code or feature that does or could interfere
with, damage or degrade in any manner the performance or security of a Site or
adversely affect a user;
i. Take any action that
imposes, in our sole discretion, an unreasonable or disproportionately large
load on a Site or the IT infrastructure used to operate a Site;
j. Submit or post to a Site
any content that is unlawful or facilitates, constitutes, promotes or
encourages illegal activity or otherwise use a Site to transfer, communicate or
store illegal material;
k. Scan or test the vulnerability
of a Site or any network connected to a Site;
l. Access or use a Site or
any User Content (as defined below) in any manner which would violate any
applicable local, state, federal or international law (including any laws
regarding the export of data or software to and from the United States or other
countries); or
m. Attack a Site via a denial-of-service attack
or a distributed denial-of-service attack or similar means.
5. Account. You may be
required to create an account to access or use certain areas of a Site or you
may elect to create an account. If you choose to create an account, you are
responsible for maintaining the confidentiality of your account (including your
username and password information), and also for
restricting access to such information, your account and your device. You agree
to accept responsibility for all activities that occur under your account or
password. Additionally, you agree to notify Us immediately of any unauthorized
access or use of your account or password, or any other breach of security.
We reserve the right, including if We become aware that
you are under the age of eighteen (18) (or age of majority if higher in your
place of residence), to terminate your account or registration, at any time. We
do not sell products or services to children and do not permit children to have
accounts. We sell products and services to adults, who can purchase items with
a credit card or other payment method. If you are under the age of eighteen (18)(or age of majority if higher in your place of
residence), you may not have an account and you may use the Sites only with the
involvement of a parent or guardian.
Should We determine that your account information may be
compromised due to your personal device being infected with a virus, malware,
other malicious code, or due to other theft of your account information, We reserve the right to invalidate, delete, or otherwise
modify your account in order to protect your account, the accounts of account
holders, and other EPIC systems from further damage or exposure. This may
include proactively changing your password. Should this need arise, We will make reasonable efforts to inform you of any
modifications made, via the email address listed for your account.
6. Content, Pricing and Accuracy.
All features, content, availability, specifications, products and prices of
products and services described or depicted on the Sites are subject to change
at any time without notice. The inclusion of any products or services on a Site
at a particular time does not imply or warrant that these products or services
will be available at any time. Certain weights, measures and similar
descriptions are approximate and are provided for convenience purposes only. We
attempt to ensure that information on the Sites is complete, accurate and up-to-date, including the applicable colors; however, the
actual color you see depends on your device set-up, and We cannot guarantee
that your device will accurately display such colors. Despite our efforts, the
information on the Sites may occasionally be inaccurate, incomplete or
out-of-date. We make no representation as to the completeness, accuracy or
currency of any information on the Sites. For example, products or services
included on a Site may be unavailable, may have different attributes than those
listed, or may carry a different price than what is stated on the Site. In the
event of a pricing error or discrepancy on a Site with respect to products or
services, We reserve the right to cancel any orders
(or partial orders) for such products or services.
7. EPIC Text Programs. EPIC
operates marketing and transactional text message programs (each a "Text
Program" and together "Text Programs"), which are further described
below in detail. The following terms apply to all of
the Text Programs:
- By opting-in to any of the Text Programs, you consent to
being sent periodic autodialed and/or non-autodialed text messages in relation
to that Text Program at the telephone number that you provided at the time of
joining that Text Program.
- By completing the opt-in process for any Text Program,
you are confirming that the telephone number that you provided at the time of
opting-in to the Text Program is your mobile number and that you have the
authority to grant EPIC the right to send text messages to that mobile number.
- Joining any of the Text Programs is not a condition of
making a purchase.
- If you change or deactivate your mobile number, you must
notify Us of this change at 1-866-302-8745.
- While all of the Text Programs
are free, message and data rates may apply. You should check with your wireless
carrier if you have questions about your plan and its coverage.
- The mobile carriers are not liable for delayed or
undelivered messages.
- EPIC is not liable for TCPA or other violations caused
by a carrier network failure or malfunction.
- All of the Text Programs and participation in any Text
Program is governed by EPIC Terms
of Use and Privacy
Policy.
- After joining any Text Program, if you no longer wish to
be a part of that Text Program, reply "STOP" to the applicable Text Program
from which you want to opt-out. After texting "STOP", you will receive one
additional text message confirming that your request has been
processed. Please note that if you opt-out of one
of the Text Programs, you will not be opted-out of any of the other Text
Programs to which you belong. You will need to opt-out of each Text Program
separately. Texting "STOP" is the recommended method for opting out to assure
prompt removal. If you choose to request an opt-out by other means it may
result in delays in complying with your request.
- EPIC may change the Text Program terms or end
the Text Programs at any time.
Additional details specific to each of the Text Programs
and how to join are set forth below.
A. Marketing
Text Programs. EPIC operates marketing text programs. After
joining any of EPIC marketing text programs, you may receive text messages
regarding special offers, new products, shopping cart reminders, and other
marketing communications related to the applicable program that you joined.
B. EPIC Order Text
Messages. EPIC also offers text message order updates in relation to
online orders that may include, but not limited to;
a. Your Order Confirmation
b. Shipping status of your order
c. Partial or full order
cancellations, or notification regarding other problems with fulfilling your
order, in some instances (please note that you may not always receive text
messages regarding partial or full order cancellations
and you should review emails to get full details regarding order
cancellations); and,
The number of Order Alerts that you will receive and
how often you receive them will vary depending on circumstances surrounding
each particular order. Message frequency may change at
any time.
ii. Types of Text Messages That Will Not Be Sent. If
you’ve only Opted-In to receive Order related texts, you will not receive
marketing text messages.
iii. Message Availability. Order related
texts may not always be available and EPIC reserves the right to discontinue them
at any time.
8. Applicable Law. By
registering for an account or placing an order, you represent that the products
or services ordered will be used only in a lawful manner and as intended by
such manufacturer. The Sites are not intended to subject EPIC to the laws or
jurisdiction of any state, country or territory other than that of the United
States, and We do not represent or warrant that the Sites or any part thereof
is appropriate or available for use in any jurisdiction besides the United
States. It is your responsibility to ascertain and obey all applicable local,
state, federal and international laws (including minimum age requirements) in regard to the possession, use and/or sale of any product
or service purchased via a Site.
9. Shipping Charges and Limitations. When a
product order is placed for delivery, it will be shipped to the address
designated by the purchaser, as long as such shipping
address is compliant with the shipping restrictions contained on the Site. All
deliveries of product purchases from a Site are made pursuant to a shipment
contract. As a result, risk of loss and title for products purchased from a
Site pass to you upon delivery to the carrier. You are responsible for filing
any claims with carriers for damaged and/or lost shipments. Shipping charges
may exceed actual shipping costs.
10. Confirmation, Cancellation and Coupons.
While it is our practice to confirm online orders via email, the receipt of an
email order confirmation does not constitute our acceptance of an order nor our
confirmation of an offer to sell a product or service. We reserve the right,
without prior notice and at any time: (a) to limit the order quantity on any
product or service and/or to refuse service or fulfillment of any order or to
any customer; (b) to discontinue any product or service; (c) to bar any user from
making or completing a transaction; and (d) to limit or impose conditions on
the honoring of any coupon, coupon code, promotional code, or other similar
promotion.
For clarification, orders may be limited or cancelled at
any time including after receipt of a confirmation or shipping email. We also
may require additional information and/or verification of information prior to
the acceptance and/or shipment of any order.
For products purchased from our Sites using a credit card,
an authorization may be placed on your credit card when you place an order. You
will be charged for an item (and your purchase of such item will be complete)
when the item in your order is shipped. Certain custom items may be charged
when the order is placed. Partial shipment or partial cancellation of orders
may occur.
For products purchased from our Sites using a gift card,
the full amount of the purchase price will be applied to your gift card when
you place the order. However your purchase of such item is not complete until the item in your order is
shipped. Partial shipment or partial cancellation of orders may occur. If an
order for an item purchased with a gift card is cancelled, the amount
applicable to the cancelled item will be restored to your gift card or you will
be issued a new gift card for such amount.
11. Intellectual Property. All text, graphics,
information, images, content, video, data, music, code, software, trademarks,
trade names, service marks, logos, fonts, custom colors, and other material
displayed on, available via, or that can be downloaded from a Site, excluding User
Content (collectively, the "EPIC IP"), are either the property
of, or used with permission by, EPIC or our service providers and licensors,
and are protected by copyright, trade dress, trademark and other laws.
Additionally, the design, arrangement, and collection of the EPIC IP on the
Sites, including the look and feel of the Sites (the "Look and Feel"),
is the exclusive property of EPIC and protected by applicable copyright laws.
We expressly reserve all intellectual property rights in all EPIC IP and the
Look and Feel. Nothing contained on the Sites grants or should be construed as
granting, by implication, estoppel, or otherwise, any license or right to use
any EPIC IP or the Look and Feel without the express written permission of Us
or such third party owner.
12. User Content Posted by You. As a user of a
Site, you may provide and/or post content, including reviews, comments,
suggestions, profile information, photographs, videos, messages, communications
and/or other materials and in addition, if you participate on one of our team
sports or event Sites you (or the Organization) may provide and/or post
information (including but not limited to information such as eligibility,
roster, scheduling, performance, scoring, photos, audio and/or
videos) (collectively, "User Content") and/or share it
with other users. Subject to any licenses and rights expressly granted herein,
any User Content posted by you, is owned by you.
User Content is and will be considered non-confidential
and non-proprietary. We may, but are not obligated to, monitor or review any
User Content. EPIC assumes no responsibility for any User Content, whether or not arising under the laws of copyright, libel,
privacy, obscenity, or otherwise. We shall have no obligations to use, return,
review, remove, or respond to any User Content (unless required by law). We
retain the right to remove any or all User Content for any or for no reason,
including User Content that, in our sole discretion, violates these Terms and
reserve the right to terminate your access.
Without limiting the foregoing, We
have the right to fully cooperate with any law enforcement authorities or court
order requesting or directing Us to disclose the identity or other information
of users and/or devices using or accessing the Sites. We are not responsible
for claims resulting from our cooperation with law enforcement or court orders
however the foregoing does not waive our liability, if any, for (i) claims for
personal injury or death caused by our negligent acts or (ii) damages arising
from our intentional, willful or reckless misconduct.
You are solely responsible for any User Content you post,
publish or display on a Site or transmit to others. You will post only User
Content you believe in good faith to be true and accurate, and you will not
post to a Site any User Content that is false, inaccurate, misleading or
fraudulent. You are prohibited from posting or transmitting any content that:
a. Is deceptive, misleading,
fraudulent, unlawful, threatening, defamatory, libelous, obscene, pornographic
or profane;
b. Promotes illegal activity,
encourages conduct that would be considered a criminal offense or give rise to
civil liability, or otherwise violates any law;
c. Violates the rights of a third party;
d. Is offensive to users of the
Site, such as content that promotes racism, bigotry, hatred or physical harm of
any kind against any group or individual; or
e. Harasses or advocates harassment
of another person or entity; or
f. Reports your use of, or directs other users to maintain or use products any manner which is contrary to that stipulated or
provided by the manufacturer or EPIC.
By uploading User Content to a Site, you hereby grant, and
represent and warrant that you have all rights and authority necessary to
grant:
(i) EPIC and our service providers an irrevocable,
perpetual, non-exclusive, royalty-free, fully sub-licensable, fully paid-up,
worldwide license and right to use, copy, revise, publicly perform, digitally
perform, publicly display and distribute such User Content, and to prepare
derivative works based on, or incorporate into other works, such User Content
with or without attribution; and
(ii) All users of the Sites an
irrevocable, perpetual, non-exclusive, royalty-free license and right to use
such User Content for each such user's personal, non-commercial use, subject to
the restrictions set forth in these Terms.
You understand and acknowledge that We may: (a) be working
on the same or similar idea to any ideas, expression of ideas or other
materials you submit within your User Content (each, an "Idea");
(b) already know of such Idea from other sources; and/or (c) wish to develop
such Idea or a similar idea on our own.
13. User Content Posted by Others. If you
participate on one of our team sports or event Sites the Organization may
provide and/or post information (including but not limited to eligibility,
roster, scheduling, performance and/or scoring information) and you consent to
such posting. In addition, other third parties may post information on our
Sites. You acknowledge and agree that We have limited control over the User
Content posted to the Sites, or any links to other sites, including the content
of any messages or posts and manner of posting, and that We do not guarantee
the accuracy, integrity, or quality of User Content. All User Content,
including advice and opinions posted by users, comprises the views and
responsibilities of those who post such User Content and does not necessarily
represent our views. We are not obligated to review or remove User Content and
you understand that, by using a Site, you may be exposed to User Content that
is offensive, indecent or objectionable.
14. Third Party Links. From time to time, a
Site or Service may contain links to and/or functionality interacting with
third party sites that are not owned, operated or controlled by EPIC. All such
links and/or functionality are provided solely as a convenience and do not
constitute an endorsement by EPIC. If you use these links, you will leave the
Site. We are not responsible for any content, materials or other information
located on or accessible from any other site. We do not endorse, guarantee, or
make any representations or warranties regarding any other site; any content,
materials or other information located or accessible from such sites; or any
results that you may obtain from using such sites. We also do not guarantee
that links and/or functionality provided by third parties will be available or
error-free, uninterrupted, free from viruses and/or unauthorized access, or
otherwise meet your requirements.
IF YOU DECIDE TO ACCESS ANY OTHER SITE LINKED TO OR FROM
THE SITES, YOU DO SO ENTIRELY AT YOUR OWN RISK.
15. Disclaimers. We do not and cannot warrant
that any Site (including any element of a Site) or its servers will be
error-free, uninterrupted, free from viruses and/or unauthorized access, or
otherwise meet your requirements.
YOUR USE OF A SITE (INCLUDING ANY ELEMENT OF A SITE, MOBILE APP,
WEBSITES, CONTESTS, SERVICES, AUTOMATED CHATBOTS, ONLINE CHAT FEATURES, EMAIL
AND/OR TEXTING, OR SOFTWARE) AND OF ANY USER CONTENT, IS AT YOUR OWN
RISK. THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR IN
CONNECTION WITH THE SITES ARE PROVIDED "AS IS", "AS
AVAILABLE", AND WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF
INTELLECTUAL PROPERTY. NEITHER EPIC, NOR ANY OF ITS AFFILIATES, SERVICE
PROVIDERS OR SUPPLIERS, WARRANT THE ACCURACY OR COMPLETENESS OF THE
INFORMATION, MATERIALS, PRODUCTS OR SERVICES PROVIDED ON OR THROUGH THE SITES.
THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE
SITES MAY BE OUT-OF-DATE, AND NEITHER EPIC NOR ANY OF ITS AFFILIATES, SERVICE
PROVIDERS OR SUPPLIERS MAKE ANY COMMITMENT OR ASSUME ANY DUTY TO UPDATE SUCH
INFORMATION, MATERIALS OR SERVICES. ALL PRODUCTS AND SERVICES PURCHASED ON OR
THROUGH THE SITES ARE SUBJECT TO ONLY THE APPLICABLE WARRANTIES OF THEIR
RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY, AND TO THE
FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EPIC HEREBY DISCLAIMS ALL
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR
THROUGH THE SITES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EPIC
HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR PRODUCT OR SERVICE DEFECTS OR
FAILURES, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT
MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR
MISAPPROPRIATION (INCLUDING UNAUTHORIZED ACCESS OR MISAPPROPRIATION OF YOUR
PERSONAL INFORMATION). INFORMATION ABOUT CONTENT, QUALITY, PERFORMANCE OR
FEATURES OF THIRD-PARTY PRODUCTS IS PROVIDED BY THE MANUFACTURER/SUPPLIER, NOT EPIC
SPORTING GOODS AND EPIC SPORTING GOODS MAKES NO WARRANTIES WITH RESPECT TO SUCH
INFORMATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS
"CONSUMERS" IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION
IMPROVEMENTS ACT.
We do not represent or warrant that the health, nutrition,
ingredient, allergen or other product information on the Sites is accurate or
complete since this information is provided by the product manufacturer or
supplier. We recommend that you do not rely solely on the information presented
on our Sites and that you consult each product's label or contact the
manufacturer directly if you have a specific question or dietary concern.
THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT
APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY
SUCH PROHIBITIONS.
16. Limitations of Liability. We do not assume
any responsibility, and shall not be liable for any damages to, or viruses or
other harmful or malicious code that may infect or affect, your computer,
device, telecommunication equipment, or other property caused by or arising
from your access to, use of, or browsing of a Site, linking to a third party
site, or your downloading of any materials or information from a Site and will
not be liable for any loss or damage arising from the unlawful, malicious,
negligent or wrongful conduct of third parties.
IN NO EVENT WILL EPIC OR ITS RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS,
PARTNERS, VENDORS NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR
TRANSMISSION OF THE SITES (OR ANY PART OF THE SITES) BE LIABLE TO ANY PARTY FOR
ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS
INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, ACCESS, OR THE RESULTS
OF USE OF A SITE, ANY SITES LINKED TO A SITE, OR THE INFORMATION OR MATERIALS
CONTAINED IN ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT
(INCLUDING OUR NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT OF ANY PROBLEM WITH THE SITES, OR ANY
MATERIAL OR CONTENT ON THE SITES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE
USING THE SITES. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN YOU
AND EPIC. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU
HAVE PURCHASED ON OR THROUGH A SITE, SUBJECT TO THE EXCLUSIONS BELOW, YOU AGREE
THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR
SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER'S OR SUPPLIER'S
WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICE IN
ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE SITE.
THE FOREGOING LIMITATIONS OF LIABILITY DO
NOT APPLY TO (i) CLAIMS FOR PERSONAL INJURY OR DEATH CAUSED BY OUR NEGLIGENT
ACTS OR (ii) DAMAGES ARISING FROM OUR INTENTIONAL, WILLFUL OR RECKLESS
MISCONDUCT. NOTHING IN THESE TERMS PURPORTS TO EXCLUDE ATTORNEYS’ FEES OR
DAMAGES WHERE MANDATED BY STATUTE.
17. Indemnity. You agree to defend, indemnify
and hold EPIC and its respective affiliates, licensors, directors, officers,
employees, agents and representatives, harmless from and against any losses,
costs, expenses or damages of any nature whatsoever, including attorneys' fees
and court costs, arising from any claim, cause of action, suit or demand of any
third party due to, arising out of or relating to your breach of these Terms.
18. Reporting a Violation of Rights, including
Copyrights. If you believe any User Content or any other aspect of a Site
infringes your copyright, you should send written notice of the alleged
copyright infringement this address:
EPIC Sports
9750 E 53rd Street North
Bel Aire, KS 67226
or by email at: CopyrightIssue@epicsports.com
Such notice must meet the requirements of the Digital
Millennium Copyright Act by providing the following information:
a. A description of the copyrighted
work that you claim has been infringed;
b. A description of where the
allegedly infringing material is located on the Site(s);
c. Your name, address, telephone
number and email address;
d. A statement by you that you have
a good faith belief that the disputed use is not authorized by the copyright
owner, its agent or the law;
e. A statement by you, made under
penalty of perjury, affirming that the above information in your notice is
accurate, and that you are the owner of the copyright at issue or are
authorized to act on the copyright owner's behalf; and
f. An electronic or physical
signature of the person authorized to act on behalf of the owner of the
copyright at issue.
Additional Rights Pertaining to Mobile Application
Users
Please note that, as described in our Privacy Policy with
respect to team sports or events (Section I.G), we do not control the manner in
which Organizations input, use, display or share information or User Content
posted or stored on Sites we provide for team sports such as Our Mobile Application . You may consult the privacy policy of such
Organizations or contact them directly for more information about how they use
the Sites for any team sports in which you participate (on behalf of yourself
or a player with whom you are associated), or to exercise any applicable legal
rights with respect to that information or User Content. Note also that your
use of those Sites is subject to the License
Agreement found on the applicable Site.
However, you can always report copyright infringement
claims to us as provided above, and report any other
issue to us via the contact information posted at the end of these terms.
19. Counter-Notice. If you believe that your
User Content was removed or disabled but is not infringing; or that you have
the authorization from the copyright owner, the copyright owner's agent or
pursuant to the law, to post and use the content in your User Content; you may
send a counter-notice to the Copyright Agent containing the following
information:
a. Your physical or electronic signature;
b. Identification of the content
that has been removed or to which access has been disabled and the location at
which the content appeared before it was removed or disabled;
c. A statement that you have a good
faith belief that the content was removed or disabled as a
result of mistake or a misidentification of the content; and
d. Your name, address, telephone
number and email address, a statement that you consent to the jurisdiction of
the federal court in Pittsburgh, PA, and a statement that you will accept
service of process from the person who provided notification of the alleged
infringement.
If a counter-notice is received, EPIC may send a copy of
the counter-notice to the original complaining party informing that person that
it may replace the removed content or cease disabling it in ten (10) business
days. Unless the copyright owner files an action seeking a court order against
the content provider, member or user, the removed content may be replaced, or
access to it restored, in ten (10) to fourteen (14) business days or more after
receipt of the counter-notice, at EPIC sole discretion.
20. Disputes, Choice of Law, and Jurisdiction.
(a) Initial Dispute Resolution. We are
available by email at Legal@epicsports.com to
address any concerns you may have regarding your use of the Sites. Most
concerns may be quickly resolved in this manner. The parties shall use their
best efforts to settle any dispute, claim, question, or disagreement directly
through consultation and good faith negotiations, which shall be a precondition
to either party initiating a lawsuit or arbitration. Any matter and/or dispute
relating in any way to your visit to or interaction with a Site, including
compliance with these Terms, which is not so resolved shall be submitted to
binding confidential arbitration as provided in Section 22 (herein).
(b) Choice of Law and Courts for Non-Arbitrated
Disputes. Unless expressly addressed in the Additional Terms, these Terms
supersede any other agreement between you and EPIC to the extent necessary to
resolve any inconsistency or ambiguity between them. The Sites are administered
by EPIC from its offices in Wichita, Kansas. Notwithstanding the arbitration
provisions in Section 21, to the extent you have in any manner violated or
threatened to violate our intellectual property rights, We
may seek injunctive or other appropriate relief in the state courts of Wichita,
Kansas.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF
OR RELATING TO THESE TERMS OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR
AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS
PERMANENTLY BARRED.
21. Arbitration.
(a) If the parties don’t reach an agreed upon
solution pursuant to the dispute-resolution contemplated in Section 21(a) of
these Terms, you and EPIC each agree that any dispute, claim or
controversy arising out of or relating to our products or services or the Sites
(including, without limitation, EPIC digital operations at or through our
websites, our mobile/tablet sites, our social media presence, and our
applications, or these Terms or the breach, enforcement, interpretation or
validity thereof, shall be determined by binding arbitration before one
arbitrator. The arbitrator will be mutually selected by the Parties. The
arbitrator must be a retired federal or state judge who worked as a judge in
the state of Kansas and must also be experienced with the subject matter of the
arbitration. If, after 60 days of good faith meet and confer efforts, the
Parties are unable to agree on an arbitrator, either Party may petition a court
with proper jurisdiction to appoint an arbitrator: (a) pursuant to a process
whereby the court provides the Parties with a panel of five potential
arbitrators meeting the requirements herein for an arbitrator, each Party
strikes one arbitrator, and the court appoints the arbitrator from the
remaining arbitrators on the panel based on the arbitrator’s qualifications and
expertise, and the requirements of this Agreement; or (b) pursuant to the
arbitrator selection process provided in the JAMS Streamlined Arbitration Rules
and Procedures. For purposes of this Section, good faith meet and confer efforts require that each party propose at
least three arbitrators who meet the qualifications described in this
Agreement. The selected or appointed arbitrator must hear the matter on
consecutive business days without interruption, except in the event of a
bifurcation or agreement of the Parties. The arbitration shall be
administered pursuant to JAMS' Streamlined Arbitration Rules and Procedures.
Judgment on the Award may be entered in any court having jurisdiction. By
agreeing to arbitration, the parties understand and agree that they are waiving
their rights to maintain other available resolution processes, such as a court
action or administrative proceeding, to settle their disputes. We strive to
offer a fundamentally-fair arbitration hearing
process. For small claims (i.e., up to $10,000), in addition to your right to
bring small claims court actions as noted below, We
believe this can often be satisfied when hearings are conducted via electronic
or telephonic means or by a submission of documents in lieu of a personal
appearance by the parties. However the arbitrator
shall have discretionary authority to require a face-to-face meeting, if it
determines that such face to face meeting is necessary for a fundamentally fair
hearing. Notwithstanding EPIC right to modify these Terms. Further, any such
modification to the dispute and/or arbitration requirements in Section 20 or to
this Section 21 shall not apply to claims arising prior to the date of such
modification and any such changes shall not affect your prior election to opt
out of arbitration as provided below. In connection with these arbitration
provisions, the parties agree as follows:
1. This arbitration agreement is reciprocally binding
on all parties such that both you and We are required to arbitrate claims;
2. Remedies that would otherwise be available to the
parties under applicable federal, state or local laws, including the recovery
of attorney’s fees, remain available under this arbitration clause;
3. The arbitrator must be neutral
and the parties will each have a reasonable opportunity to participate in the
process of choosing the arbitrator;
4. You have a right to an in-person hearing in your
hometown area within the United States;
5. You have the right to the use of counsel of your
choosing at your own expense if you so elect to use counsel, and to recover
attorneys’ fees and expenses of arbitration to the extent provided by law;
6. The parties are permitted the discovery or
exchange of non-privileged information relevant to the dispute in accordance
with JAMS Streamlined Arbitration Rules and Procedures; and
7. The arbitrator's award will consist of a written
statement stating the disposition of each claim. The award will also provide a
concise written statement of the essential findings and conclusions on which
the award is based.
(b) Arbitration Filing Fees. If you
initiate the arbitration, to the extent the filing fee for the arbitration
exceeds the lesser of $250 or the cost of filing a lawsuit, EPIC will pay the
additional cost. All other costs of the arbitration will be borne by Us. You
will be responsible for your own attorney fees and expenses unless the
arbitration rules or applicable law permit you to recover your attorney’s fees.
You will not be required to pay any fees or costs incurred by us if you do not
prevail in arbitration, unless the arbitrator determines that the claim was
brought in bad faith, in which case the arbitrator may award us our attorney’s
fees, expert witness fees, arbitration-related fees and/or costs. If we
are the claiming party initiating an arbitration against you, We will pay all costs associated with the arbitration (other
than your attorneys’ fees and expenses unless permitted to be recovered under
the arbitration rules or applicable law).
(c) Waiver of Certain Rights from Court. The
parties understand that, absent this mandatory provision, they would have the
right to sue in court. Court proceedings generally provide greater discovery
rights, a judge or jury trial, and could provide greater opportunity for
appellate review. They further understand that, in some instances, the costs of
arbitration could exceed the costs of litigation.
(d) Class
Action Waiver. THE PARTIES FURTHER AGREE THAT ANY ARBITRATION SHALL BE
CONDUCTED IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER
REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A
CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS
(e) Exception
- Small Claims Court Claims. Notwithstanding the parties' decision to
resolve all disputes through arbitration, either party may also seek relief in
a small claims court for disputes or claims within the scope of that court's
jurisdiction. Any appeal of the decision in such small
claims court shall be subject to these arbitration provisions.
(f) 30-Day
Right to Opt-Out. You have the right to opt-out and not be
bound by the arbitration and class action waiver provisions set forth in this
Section 21 by sending written notice of your decision to opt-out to the
following address via certified mail: EPIC Sports – 9750 E 53rd
Street North – Bel Aire, KS 67226, Attention: Legal Department. The notice must
be sent within thirty (30) days of your first use of a Site after the effective
date of these Terms, otherwise you shall be bound to arbitrate disputes in
accordance with the terms of those Sections. If you opt-out
of these arbitration provisions, EPIC also will not be bound by them.
(g) YOU
AGREE THAT BY ENTERING INTO THESE TERMS, IN PARTICULAR THE AGREEMENT TO
ARBITRATE, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS
ACTION AND THAT YOU MAY BRING CLAIMS AGAINST EPIC ONLY IN YOUR INDIVIDUAL
CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING. ANY ARBITRATION OR OTHER ACTION WILL TAKE PLACE ON
AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU ACKNOWLEDGE THAT BY ENTERING INTO THESE TERMS, YOU INTEND TO BE LEGALLY
BOUND AND, IN ADDITION TO OTHER GOOD AND VALUABLE CONSIDERATION, YOU AGREE THAT
EPIC AGREEMENT TO ARBITRATE CLAIMS CONSTITUTES CONSIDERATION FOR SUCH WAIVER.
THE CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT TO ARBITRATE
AND CAN NOT BE SEVERED FROM THIS AGREEMENT TO ARBITRATE DISPUTES.
22. Admissibility. A printed version of these
Terms shall be admissible in judicial and administrative proceedings and in
arbitration proceedings based upon or relating to these Terms to the same
extent and subject to the same conditions as other business documents and records
originally generated and maintained in printed form.
23. Waiver and Severability. No waiver by
either party of any term or condition set forth in these Terms shall be deemed
a further or continuing waiver of such term or condition or a waiver of any
other term or condition, and any failure of a party to assert a right or
provision under these Terms shall not constitute a waiver of such right or
provision.
24. Entire Agreement. These Terms and our
Privacy Policy and Additional Terms constitute the sole and entire agreement
between you and EPIC with respect to the Sites and supersede all prior and
contemporaneous understandings, agreements, representations and warranties,
both written and oral, with respect to the Site.
25. Termination. You or EPIC may suspend or
terminate your account or your use/access of a Site at any time, for any reason
or for no reason. You are personally liable for any activity prior to such
termination, including any orders that you place or charges that you incur
prior to termination. EPIC reserves the right to change, suspend, or
discontinue all or any aspect of the Sites at any time without notice except as
provided in these Terms.
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