WEBSITE GENERAL TERMS OF USE AGREEMENT
Published: November 30, 20231. Introduction.
Welcome to the Sam’s Club Hub (“Club Hub,” “Site,” or “it”), a web-based software toolset operated by 81Eighty Promotions, L.P. (“Provider”). Provider manufactures, sells, markets and distributes the products made available on the Site as s service to Sam’s West, Inc. (“Sam’s”) and Sam’s associates and employee customers. This page explains the Privacy Policy (as defined below) that governs the use of the Site’s online and/or mobile services, website, software, and/or any other content provided on or in connection with the service (collectively the “Service” or “Services”).
By accessing or using the Service, you signify that you have read, understood, and agreed to be bound by this Terms of Use Agreement (“Agreement”), and to the collection and use of your information as set forth in the Site’s privacy policies, each of which shall be considered part of this Agreement, whether or not you are a registered user of the Service. The Site may modify these terms and will provide notice of such changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”).
The Site may acquire, merge, or create a parent or subsidiary company in the future (“New Site Entity”) before this Agreement is updated. If that occurs, you hereby agree that any New Site Entity is also covered by the terms and conditions set forth in this Agreement.
Provider reserves the right to amend this Agreement at any time by posting an updated version. You should therefore periodically visit this page to review the then-current Agreement. Your use of the Services after our posting of amendments to this Agreement will constitute your acceptance of this Agreement, as modified. If, at any time, you do not wish to accept this Agreement, you may not use the Services.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
2. Use of the Service.
2A. Eligibility.
This is a contract between you and the Site. You must read and agree to these terms before using any of the Site Services. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with the Site, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 years of age is governed by the Site’s Children’s Privacy Policy (Users Under 13). The Service is not available to any Users previously removed from the Service by the Site.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal use only and as permitted by the features of the Site Service. The Site reserves all rights not expressly granted herein in the Services and the Site Content (as defined below). The Site may terminate this license at any time for any reason or for no reason.
The Site may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Site, as determined by the Site in its sole discretion. The Site reserves the right to determine the form and means of providing notifications to its’ Users, provided that you may opt out of certain means of notification as described in this Agreement. Provider is not responsible for any automatic filtering you or your network provider may apply to email notifications Provider sends to the email address you provide the Site. Provider may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When Provider changes the Agreement in a material manner, Provider will provide you with reasonable notice and update the ‘last modified’ date at the top of this page. Your continued use of the Services after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use or access (or continue to access) the Service.
2B. User Accounts.
Your Site account and/or profile (collectively, “Account”) gives you access to the Services and functionality that the Site may establish and maintain from time to time and in the Site’s sole discretion. The Site may maintain different types of accounts for different types of Users.
You may never use another User’s Account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. The Site encourages you to use “strong” passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your Account. You must notify the Site immediately of any breach of security or unauthorized use of your Account. The Site will not be liable for any losses caused by any unauthorized use of your Account.
You may control your User Account and how you interact within the Services by changing the settings on your settings page. By providing the Site your email address, you consent to the Site using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. You may not opt-out of Service-related emails. The Site may also use your email address to send you other messages, such as special offers. If you do not want to receive such non-Service-related email messages, you may opt out. Opting out may prevent you from receiving email messages regarding special offers.
2C. Service Rules.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Site servers than a human can reasonably produce in the same period of time by using a conventional web browser (except that the Site grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at the Site’s sole discretion an unreasonable or disproportionately large load on the Site’s infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures the Site may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
2D. Access to the Services.
In order to access the Services, you must have access to the World Wide Web, either directly or through devices that access Web-based content, and must pay any service fees associated with such access. Not all of the features available through the Services, including certain live streaming audio, video or access to high-quality video, will be available to you unless your computer or mobile device satisfies the minimum technical requirements that are presented when you first register for the Services. As Provider makes changes to the Services, the minimum technical requirements for access to the Services may change. You are responsible for determining whether your computer or device satisfies the minimum technical requirements before you register to access the Services. Moreover, if Provider changes the minimum technical requirements after you initially register to access the Services such that your computer or device no longer satisfies the requirements, your exclusive remedy will be to request termination of your access to the Services.
3. User Data.
3A. Your Data Related Responsibilities.
Certain aspects of the Services allow Users to provide the Site with data or access to other data sources (whether online or otherwise) (“User Data”). In connection with User Data, as of the date you accepted this Agreement and throughout the term of this Agreement, you represent, warrant and agree that: (i) you have obtained such User Data lawfully, and such User Data does not and will not violate any applicable laws or a third party’s proprietary or intellectual property rights; (ii) you shall not provide any User Data or content that contains bank account information, credit or debit card information, personal information collected from children under 13 years of age without the parent’s consent, social security numbers, or health or medical information, except in designated areas of the Service which permit the receipt of such sensitive data elements. Such data may not be submitted or stored by the Site without the Site’s explicit consent, and the Site reserves the right to delete or anonymize such data if discovered stored in an unauthorized location within the Service. You are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to your User Data that you share with the Site for the provision of Services under this Agreement. The Site may exercise the rights to your User Data granted under this Agreement without liability or cost to any third party.
3B. License Grant to User Data.
By submitting such User Data, or providing the Site with access to such User Data, you expressly grant, and you represent and warrant that you have all rights necessary to grant, all right and licenses to the User Data required for the Site and the Site’s subcontractors and service providers to provide the Services and otherwise use User Data as permitted under this Agreement, including, without limitation, the Site’s consultative services such as the reconciliation of data from multiple sources. You acknowledge and agree that the Site may collect, analyze and use User Data, including data that has been anonymized, aggregated or derived from User Data, as well as data about your access and use of the Services, for the purpose of providing, operating, analyzing, and improving the Services.
4. Mobile Software.
4A. Generally.
Provider may make available software to access the Services via a mobile device (“Mobile Software”). To use the Mobile Software, you must have a mobile device that is compatible with the Mobile Software. The Site does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. The Site hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Site Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software.
You acknowledge that the Site may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license end user license agreement, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and the Site or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. The Site reserves all rights not expressly granted under this Agreement.
4B. Mobile Software Acquired on behalf of the United States Government.
If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies.
The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to 48 C.F.R. § 227.7202-1 and 48 C.F.R. § 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Site Service.
4C. Mobile Software from Apple App Store.
The following applies to any Mobile Software you acquire from the Apple App Store (“Apple-Sourced Software”):
(i) You acknowledge and agree that this Agreement is solely between you and the Site, not Apple, and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to the Site as provider of the software.
(ii) You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to the Site as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, the Site, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and the Site acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
4D. Mobile Software from Google.
The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”):
(i) you acknowledge that the Agreement is between you and the Site only, and not with Google, Inc. (“Google”);
(ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service;
(iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software;
(iv) the Site, and not Google, is solely responsible for its Google-Sourced Software;
(v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to the Site’s Google-Sourced Software.
5. The Site’s Proprietary Rights.
5A. Site Content.
Except for your User Content and your User Data, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (“Site Content”), and all Intellectual Property Rights related thereto, are the exclusive property of the Site and its licensors (including other Users who provide User Content through the Services). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Site Content. Use of Site Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
5B. Site Property.
The Services contain additional data, information, and other content not owned by you, such as reputational or status indicators and/or fictional property representing virtual progress or achievements within the Services (“Site Property”). You understand and agree that, regardless of terminology used, Site Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at the Site’s sole discretion. Site Property is not redeemable for any sum of money or monetary value from the Site at any time. You acknowledge that you do not own the Account you use to access the Services, nor do you possess any rights of access or rights to data stored by or on behalf of the Site or on the Site’s servers, including without limitation any data representing or embodying any or all Site Property. You agree that the Site has the absolute right to manage, regulate, control, modify and/or eliminate Site Property as it sees fit in its sole discretion, in any general or specific case, and that the Site will have no liability to you based on its exercise of such right.
All data on the Site’s servers are subject to deletion, alteration, or transfer.
Notwithstanding any value attributed to such data by you or any third party, you understand and agree that any data, Account history and Account content residing on the Site’s servers, may be deleted, altered, moved or transferred at any time for any reason in Provider’s sole discretion, with or without notice and with no liability of any kind. The Site does not provide or guarantee, and you expressly disclaim, any value, cash or otherwise, attributed to your user content and user data residing on the Site’s servers.
6. Contests, Sweepstakes and Promotions
Contests, sweepstakes and other similar promotions that you enter on the Site or in connection with the Site integrated with a third-party website, service, application, platform, and/or content (“Provider Promotions”) may be subject to official rules and/or conditions that are supplemental to this Agreement, and which may provide details governing the Provider Promotion such as eligibility requirements, entry instructions, deadlines, prize information and restrictions. If you wish to participate in any Provider Promotion, please first review the applicable Promotion official rules and/or conditions. If a Provider Promotion’s official rules and/or conditions conflict with this Agreement, the provisions contained in the official rules and/or conditions govern and control the Provider Promotion. Your entry in to a Provider Promotion constitutes User Content and is subject to all provisions of this Agreement that govern your submission and our use of your User Content.
7. User Submissions.
7A. Ideas about Services’ Improvements.
You may choose to, or the Site may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place the Site under any fiduciary or other obligation, and that the Site is free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. Please do not include any ideas that the Site’s Terms of Use will not permit it to accept or consider.
You further acknowledge that, by acceptance of your submission, the Site does not waive any rights to use similar or related ideas previously known to the Site, or developed by its employees, or obtained from sources other than you.
7B. Unsolicited Submissions.
Neither the Provider nor any of its affiliates or employees accept or consider unsolicited ideas for new creative, marketing, promotions, products or technologies through its member sites. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Submissions”) in any form to the Site. This policy is not intended to serve as a barrier to receiving and responding to feedback from valued Provider customers. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Provider or affiliates’ products, strategies or other materials might seem similar to ideas submitted to the Provider.
If, despite Provider’s request that you not send Provider your ideas, you still submit them, then regardless of what your letter says, you agree that: (i) your submissions and their contents will automatically become the property of the Provider and its affiliates, without any compensation to you; (ii) Provider may use or redistribute the submissions and their contents for any purpose and in any way; (iii) there is no obligation for the Provider and its affiliates to review the submission; and (iv) there is no obligation to keep any submissions confidential.
8. Merchandise.
The Sites may make available listings, descriptions, and images of goods and services (collectively, “Products”). Such Products may be made available by Provider or by third parties. Provider makes no representations as to the completeness, accuracy, reliability, validity, or timeliness of such listings, descriptions, or images (including any features, specifications, and prices contained on the Sites). Such information and the availability of any Product are subject to change at any time without notice.
Provider has made efforts to accurately display the attributes of Products, including the applicable colors. However, as the actual colors you see will depend on your monitor, Provider cannot guarantee that your monitor's display of any color will accurately reflect actual product color or finish. In addition, certain weights, measures, and similar descriptions are approximate and are for convenience only.
Provider may sell Products for children’s use; however, these Products are intended for sale to adults.
Provider has no liability to you for content on the Site that you find to be offensive, indecent, or objectionable.
Provider is not responsible for, and cannot guarantee the performance of, goods and services provided by advertisers or other third parties to whose sites Provider link. While the goal is to provide accurate information, product packaging and material may contain more and/or different information than that provided on Sites, including the product description, country of origin, nutrition, ingredient, allergen, and other information. Always read labels, warnings, directions, and other information provided with the product before using or consuming the product. For additional information about a product, please contact the manufacturer. If you find a product is not as described, your sole remedy is to return it in unused condition (excluding products that are not eligible for return), in accordance with Provider’s return policy. It is your responsibility to ascertain and obey all applicable local, state, federal, and foreign laws (including minimum age requirements) regarding the purchase, possession, and use of any Product.
9. Placing an Order.
9A. Order Acceptance and Billing
You represent and warrant that you have the right to use any credit card or other means of payment that you provide to us. By providing payment card information to us, you authorize Provider to store and use the card as a payment method for purchases made through your account, including any affiliated sites and properties which you access via your account credentials. All billing information you provide to us must be truthful and accurate. Providing any untruthful or inaccurate information is a breach of these Terms of Use and may result in cancellation of your order. Prior to accepting an order Provider may also request additional information from you. Verification of information may be required prior to the acknowledgment or completion of any purchase. Provider reserves the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by Provider’s credit and fraud avoidance department. If your order is canceled after your credit card (or other payment account) has been charged, Provider will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. Provider will attempt to contact you if all or any portion of your order is canceled or if additional information is required to accept your order. Provider may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. Provider does this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the Products, as well as all shipping and handling charges and applicable taxes. You will not be charged for most orders until the order has shipped. Some exceptions (when you will be charged at the time your order is placed) are orders or preorders paid for with an e-gift card, or PayPal account.
Provider reserves the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason. Provider will attempt to notify you should such limits be applied. Provider also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Use, “reselling” will be defined as purchasing or intending to purchase any Product(s) from Sam’s Club for the purpose of engaging in a commercial sale of the same Product(s) to a third party. In addition to any other remedies available to it, Provider may in its sole discretion restrict or terminate your account, or cancel or refuse orders for violations of, or abuse of the returns policy.
9B. Pricing Information; Availability
Provider cannot confirm the price or availability of an item until after your order is placed. Pricing or availability errors may occur on the Sites. The receipt of an order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Product. Provider reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Provider. Provider may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products may be different on the Sites or from prices available in stores or on apps.
9C. Promotional Codes
Promotional codes are limited in nature and may expire or be discontinued with or without notice. Promotional codes are void where prohibited by law. Promotional codes may not be copied, sold, or otherwise transferred. They are not redeemable for cash and are subject to cancellation or change at any time for any reason without notice. Provider reserves the right in its discretion to impose conditions on the offering of any promotional code.
10. Shipping and Delivery.
Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Sites. All transactions are made pursuant to a shipping contract, and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. Delivery of Products purchased from the Sites to addresses outside the United States is not available. Some Products also have restricted delivery within the United States. Delivery. Estimated delivery times are determined based on the method of shipping chosen when Products are purchased and the destination of the Products.
11. Export Policy.
You acknowledge that (a) goods licensed or sold on the Sites, and (b) any software or technology purchased, downloaded, or used from the Sites, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received, and you agree to comply with all applicable laws. You agree, represent, and warrant that no materials will be accessed from, downloaded in, released in, carried to, transferred to, transshipped through, exported to, or re-exported (collectively “transferred”) to any territory (or national resident thereof), person, entity, or organization to which such materials could not be transferred directly from the United States or by a U.S. person without a license, including without limitation to any person on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List.
12. No Professional Advice.
If a Service provides professional information (for example, legal, medical or compliance advice), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Services. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
13. Termination.
You may terminate this Agreement at any time by taking the necessary steps to close your Account and discontinue all use of the Services. The Site may, without prior notice, take the following steps: (i) change the Service; (ii) stop providing the Service or features of the Service, to you or to Users generally; or (iii) create usage limits for the Service. The Site may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in the Site’s sole determination you violate any provision of this Agreement, or for no reason. You agree that the Site will not be liable to you or any other party for any termination of your access to the services or deletion of your account or your submission materials.
In the event of termination, however, those Sections in this Agreement which, by their nature, survive termination of the Agreement shall so survive. Specifically, and without limitation, the license you have granted to the Site and to third parties to use any User Content and User Data survives termination of this Agreement. Termination of this Agreement for any reason shall not entitle you to a refund under any circumstances. Upon termination of this Agreement for any reason, you shall make no further use of the Services whatsoever.
14. Privacy.
The Site cares about the privacy of its Users. You understand that by using the Services, you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in the Site’s Privacy Policy(ies), available here and to have your personally identifiable information collected, used, transferred to and processed in the United States.
15. Security.
The Site cares about the integrity and security of your personal information. However, the Site cannot guarantee that unauthorized third parties will never be able to defeat the Site’s security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
16. Third-Party Links & Information.
The Services may contain links to third-party materials that are not owned or controlled by the Site. The Site does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement, including the Site’s Privacy Policy(ies), do not apply to your use of such sites. You expressly relieve the Site from any and all liability arising from your use of any third-party website, service, or content, including, without limitation, User Content submitted by other Users. Additionally, your dealings with or participation in promotions of advertisers found through the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that the Site shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
17. User Copyrights, Intellectual Property, and Trademarks.
The Site respects the copyright, intellectual property, and trademark rights of others, and takes concerns related to these rights seriously. The Site reserves the right to remove any content from its Services for any reason, including if it infringes the copyright, intellectual property, and trademark rights of any person under the laws of the United States. Under the appropriate circumstances, the Site will, and expressly reserves the right to, disable and/or terminate the Accounts of Users who are repeat copyright or trademark infringers. If you believe, in good faith, that your copyrighted work or your trademark has been reproduced and is accessible on the Services in a way that constitutes copyright infringement, please contact Provider via postal mail or e-mail as follows:
81Eighty Promotions, L.P.
One Cowboys Way, Suite 300
Frisco, Texas 75034
dataprivacy@81eighty.com
Please be aware that submitting a report of copyright, intellectual property, and trademark infringement is a serious matter with potential legal consequences. For example, intentionally submitting a misleading or fraudulent report may lead to liability for damages under 17 U.S.C. § 512(f), or similar laws in other countries.
Before submitting a notice of infringement, be sure to consider whether fair use or a similar exception to copyright or trademark law may apply to the use. If you are unsure whether the content you are considering reporting infringes your rights, you may wish to seek legal guidance before submitting a notice of infringement.
Do not submit a notice of infringement unless you are the owner of the copyrighted material or trademark that you believe is being infringed, or an agent authorized to act on the owner's behalf.
18. Indemnity.
You agree to defend, indemnify and hold harmless the Site and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code. These obligations will survive any termination of this Agreement.
19. No Warranty.
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from the Site or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, the Site, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet and/or the Services. The Services may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Service may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of the Site, access to the Services may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, the Site shall not be liable in any way for any delay in responding to an inquiry or question forwarded by you or the effects any delay or unavailability may have on you. You agree that the Site shall not be liable for any damages arising from any such interruption, suspension or termination of the Service and that you shall put in place contingency plans to account for such periodic interruptions or suspensions of the Service.
The Site does not warrant, endorse, guarantee, or assume responsibility for any product or Service advertised or offered by a third party through the Site Services or any hyperlinked website or service, and the Site will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by applicable law.
20. Limitation of Liability.
To the maximum extent permitted by applicable law, in no event shall the Site, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this Service. Under no circumstances will the Site be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, the Site assumes no liability or responsibility for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Service; (iii) any unauthorized access to or use of the Site’s secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) user content or the defamatory, offensive, or illegal conduct of any third party. In no event shall the Site, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to the Site hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if the Site has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
21. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
21A. Governing Law.
You agree that: (i) the Services shall be deemed solely based in Texas; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over the Site, either specific or general, in jurisdictions other than Texas. This Agreement shall be governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
You agree to submit to the personal jurisdiction of the federal and state courts located in Collin County, Texas for any actions for which the Site retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of the Site’s copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Collin County, Texas is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
21B. Arbitration.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE SITE.
For any dispute with the Site, you agree to first contact the Site at dataprivacy@81eighty.com and attempt to resolve the dispute with the Site informally. In the unlikely event that the Site is not been able to resolve a dispute it has with you after sixty (60) days, the parties each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Collin County, Texas, unless you and the Site agree otherwise.
If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing the Site from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of the Site’s data security, Intellectual Property Rights or other proprietary rights.
21C. Class Action/Jury Trial Waiver.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO WAIVE THEIR RIGHTS TO CLASS ACTION LAWSUITS AND JURY TRIALS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE SITE.
With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless the Site agrees otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and the Site are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
22. Assignment.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Site without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
23. Severability.
This Agreement and the Site Privacy Policy(ies), together with any amendments and any additional agreements you may enter into with the Site in connection with the Services, shall constitute the entire agreement between you and the Site concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable. In the event of any conflict between this Agreement and any separate agreement(s) you may enter into with the Site in connection with the Services, the terms of such separate agreement(s) shall govern.
24. No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and the Site’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
25. Contact.
Please contact the Site at dataprivacy@81eighty.com with any questions regarding this Agreement.
