NOTICE REGARDING DISPUTE RESOLUTION. THESE TERMS CONTAIN TERMS THAT GOVERN HOW CLAIMS BETWEEN YOU AND US RELATING TO YOUR USE OF THE ONLINE STORE WILL BE RESOLVED FOR EXAMPLE, SECTION 22 CONTAINS AN ARBITRATION AGREEMENT AND WAIVER OF CLASS ACTION WHICH STATES THAT WE MUST ARBITRATE INSTEAD OF GOING TO A COURT BEFORE A JUDGE AND JURY AND THAT ALL SUCH ARBITRATION CLAIMS MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS REPRESENTATIVE OR MEMBER OR OTHERWISE ON BEHALF OF OTHERS IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING.
Warranty Disclaimers and liability limitations. While there are significant points throughout these Terms, please note Section 17 and 18 contain important limitations on our liability.
Table of Contents
2. Other Sources of Terms and Conditions; Promotions and Coupons.
3. Use of this Website.
4. Unauthorized Use.
· Copying, modifying, displaying, performing, distributing, republishing, or retransmitting any content or material (including, by way of example, images and text), in whole or in part, from/on this Website without our prior written consent;
· Collecting usernames and/or email addresses of users for the purpose of sending unsolicited email;
· Using a framing or similar technique without our prior written permission;
· Creating or maintaining any link from another website to any page on this Website without our prior written permission;
· Criminal or tortious activity, including fraud, spamming, spimming (spam by instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
· Covering or obscuring the banner advertisements on this Website, if any, via HTML/CSS or any other means;
· Any automated use of any system, such as using scripts to alter content of this Website;
· Interfering with, disrupting, or burdening this Website or the networks, systems or services connected to this Website including, without limitation, those provided by the BNED Entities;
· Using any automated system or software to extract data from this Website for commercial purposes (including "screen scraping");
· Attempting to impersonate another user or person at checkout or otherwise;
· Using the account, username, or password of another user or disclosing your password, as applicable, to any third party or permitting any third party to access your account;
· Displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through this Website on behalf of that person, such as placing commercial content on this Website;
· Using this Website for any harassing, threatening, libelous, abusive, obscene or privacy-invading purposes;
· Attempting to include any of the following in merchandise that is offered for sale through this Website and that permits user-added content (e.g., a personalized jersey): (i) images that contain obscene, profane, pornographic or otherwise objectionable content; (ii) images, names or likenesses owned by any third party without such third party's authorization; (iii) any images of a person who has current or remaining collegiate athletic eligibility; or (iv) any images that include the name, image, or likeness of any celebrity, public figure or individual who has not authorized the use of his or her name, image or likeness; or
· Using this Website in a manner inconsistent with any applicable law, rule or regulation.
6. Links to Third Party Sites; Advertisers.
8. Products, Content and Specifications.
The inclusion of any products or services on this Website does not imply or warrant that these products or services will be available at any particular time or that the listed attributes are accurate or complete. The actual color of products you see will depend in part on your computer system, and we cannot guarantee any color or texture, or detail of actual products will be accurate. We do not endorse and have not verified the accuracy or reliability of any opinion or statement made on this Website by any third party, including but not limited to customers, manufacturers, distributors or suppliers of products and services sold through this Website, and product packaging and material may contain additional or different information. Always read labels, warnings, directions or other materials provided with the product before using. In addition, we may make changes to information about price, availability or other product attributes without notice. In the event a product is listed at an incorrect price due to typographical error or error in pricing or other information, we will have the right to cancel orders of any such product, whether or not the order has been confirmed and/or your credit card or other payment method has been charged. If your credit card has already been charged for the purchase and your order is cancelled, we will refund any such charges within a commercially reasonable period of time after cancellation (the time it takes for your financial institution to process the refund may vary and is governed by your agreement with them).
9. Placing an Order; Limitations; Order Acceptance.
By placing an order, you agree that the products ordered are legal to possess and use where you intend to possess and use them and will be possessed or used only in a lawful manner, in accordance with all applicable laws, rules and regulations, including copyright law and that you have the right to use any payment method that you provide to use. You may not order products with the intent to resell them.
We reserve the right, without prior notice, to limit the order quantity on any product or service, to refuse service to any customer, or to cancel any order, for any reason including after it is submitted. We also may require additional verifications or other information prior to the acceptance and/or shipment of any order. Your receipt of an order confirmation from us does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We accept your order only upon shipment of the product. With respect to the shipment of products and services sold through this Website, risk of loss and title for items purchased from this Website pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. It also is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession or use of any item purchased from this Website.
If you complete your purchase and specify shipment to a Canadian or other international address, you agree and acknowledge that you are: (i) authorizing Fanatics to engage a third party carrier on your behalf to manage the shipping and importation of the goods into that location; (ii) authorizing the third party carrier’s customs broker to act as your agent to transport your purchases across the border into that location, clear the merchandise with the applicable border control organization (e.g., Canada Border Services Agency), and process all applicable duties, taxes, and fees on your behalf; and (iii) authorizing Fanatics to collect an additional amount at checkout to cover all of the applicable duties, taxes, and brokerage fees to be incurred on your behalf, and to retain any remaining amounts as an additional fee charged by Fanatics to you for arranging for the importation of your order.
10. Property; Intellectual Property.
All content of this Website (including, without limitation, text, graphics, icons, images, clips and software) is protected by copyright, trademark, and other laws. Names, logos, taglines, icons and marks on this Website are the exclusive property of Fanatics, Inc. and/or one of its affiliates or the BNED Entities, all rights reserved, and may not be used by you without our prior written permission. Unless otherwise indicated, all other intellectual property appearing on this Website is the property of its respective owner. We reserve all rights not expressly granted in and to this Website content and services.
11. User-Generated Content.
12. Digital Millennium Copyright Act (DMCA) Notice.
Materials (including User Content) may be made available via this Website by users and other third parties not within our control. We are under no obligation to, and do not, scan content posted on this Website for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party's copyright to remain on this Website.
If you believe any materials on this Website infringe a copyright, you should provide us with written notice that at a minimum contains:
· A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
· Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
· Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
· A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
· A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
18. LIMITATION ON LIABILITY. IN NO EVENT SHALL THE FANATICS PARTIES OR THE BNED ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF GOODWILL, LOSS OF REPUTATION, COST OF COVER DAMAGES OR INTANGIBLE LOSSES OF ANY KIND ARISING FROM YOUR USE OF THIS WEBSITE, YOUR INABILITY TO USE THIS WEBSITE, OR THE PRODUCTS OR SERVICES AVAILABLE THROUGH THIS WEBSITE, EVEN IF THE FANATICS PARTIES OR THE BNED ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FANATICS PARTIES OR THE BNED ENTITIES BE LIABLE FOR ANY DIRECT DAMAGES EXCEEDING THE GREATER OF THE FEES YOU PAID TO US FOR PRODUCTS AND SERVICES THAT ARE THE SUBJECT OF THE CLAIM AT ISSUE IN THE TWELVE MONTHS PRECEEDING THE CLAIM OR TEN UNITED STATES DOLLARS.
19. Third Party Transactions. Through your use of this Website, you may have the opportunity to engage in commercial or other transactions with other users, vendors and other third parties. You acknowledge that all transactions relating to any merchandise or services offered by any third party, including but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the third party seller or purchaser of such merchandise and services and you, and that you will look solely to such third party to enforce any of your rights. In the event of any problem with the products or services that you have purchased from a third party you agree that you will address such issues with the third party, but all limitations of liability and other rights of Fanatics shall apply, nonetheless. We may not have the ability to accept returns or refund the purchase price for any transaction you complete with a third party through this Website. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS OR INFORMATION AVAILABLE ON OR THROUGH THIS WEBSITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY AND NOT BY US.
20. U.S. Export Controls. Software made available to you by this Website (the "Software"), if any, is subject to U.S. export controls. No Software may be downloaded from this Website or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
22. Arbitration; No Class Action. PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. Use or accessing this Website or Offers constitutes your acceptance of this Arbitration provision.
As a condition of using this Website, you and we agree that any and all disputes, claims and causes of action (collectively, "Claims") arising out of or connected with this Website (except for small claims court Claims, if applicable) shall be resolved exclusively by binding arbitration under the rules of the American Arbitration Association ("AAA"), including the Supplementary Procedures for Consumer-Related Disputes, for full and final settlement of such Claim applying the Federal Arbitration Act and other federal arbitration laws. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. YOU AND WE ALSO AGREE THAT (A) ANY CLAIMS WILL BE RESOLVED INDIVIDUALLY NOT AS A PLAINTIFF OR CLASS REPRESENTATIVE, MEMBER OF OTHERWISE ON BEHALF OF OTHERS IN ANY PURPOSED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING AND NOT THROUGH ANY CLASS ACTION, (B) IF A CLAIM PROCEEDS IN COURT ANYWAY, WE BOTH WAIVE ANY RIGHT TO A JURY TRIAL; AND (C) EITHER YOU OR WE MAY SEEK A COURT INJUNCTION REGARDING INTELLECTUAL PROPERTY INFRINGEMENT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY. Although court review of an arbitration award may be limited, an arbitrator is empowered to award the same damages and relief as a court, including injunctive relief or statutory damages. Notwithstanding the foregoing, either party may seek temporary or emergency equitable relief to enforce its rights in any court of competent jurisdiction.
You may seek arbitration of a Claim by contacting our registered agent at: Corporation Service Company, 1201 Hays Street, Tallahassee, FL 32301. The arbitration may be conducted via telephone, written submissions or in person in a mutually agreed location. Payment of all filing, administration, arbitrator and/or mediator fees ("Fees") will be governed by AAA's rules. The AAA's rules are available at: www.adr.org or call 800-778-7879 (toll-free) for instructions on how to obtain a copy. Unless the AAA arbitrator determines that your Claim was frivolous, we will (i) reimburse you for the Fees paid by you, and (ii) will not seek reimbursement from you for our attorneys' fees and costs associated with the arbitration. You and we further agree that an award and any judgment confirming it only applies to the arbitration in which it was awarded and cannot be used in any other proceeding except to enforce the award itself and any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of Delaware, or the United States District Court for the District of Delaware. For any Claims that are not subject to arbitration, if any: (a) the exclusive jurisdiction and venue for proceedings involving Claims shall be the courts of competent jurisdiction sitting within the State of Delaware (the "Forum"), and the parties hereby waive any argument that any such court does not have personal jurisdiction or that the Forum is not appropriate or convenient; (b) you and we waive any and all rights to trial by jury with respect to any Claims.
24. Contact Information. Fanatics Retail Group, 8100 Nations Way, Jacksonville, FL 32256.