TERMS & CONDITIONS
SSAM Sports, Inc.
Terms and Conditions
Last Updated: October 4, 2016
Please read these term and conditions (the “Agreement”) carefully. This Agreement is a legal agreement between you (“You”) and SSAM Sports, Inc. d/b/a 4D Motion Sports (“4D Motion”). This Agreement specifies the terms and conditions under which You may use the 4D Motion System. By accepting this Agreement, either by clicking a box indicating acceptance, by executing an order form that references this Agreement, or by using the 4D Motion System, You represent and warranty that: (1) You are at least 13 years old or older; (2) You have the right and authority to legally bind yourself to the terms of this Agreement; and (3) You are agreeing to the terms of this Agreement. If You are under age 18 but above 13, You are permitted to use the 4D Motion System provided you do so with the consent of a parent or legal guardian who accepts the Agreement on your behalf. If You are accepting this Agreement on behalf of a company or other legal entity, You represent that You have the right and authority to legally bind such entity to the terms of this Agreement. If You do not have such authority or do not agree to all these terms, then You must not accept this Agreement and You may not use the 4D Motion System.
This Agreement is effective between 4D Motion and You as of the date You accept this Agreement (the “Effective Date”).
1.1. “4D Motion System” means the Third Party Hardware, including the firmware and computer programs embedded in the Third Party Hardware, the App, the Accessories, and the user manuals.
1.2. “Accessories” means the 4D Motion System accessories, including but not limited to, strap kit, connecting clips and carrying case.
1.3. “App” means the mobile application provided by 4D Motion as part of the 4D Motion System. Your use of the App will be governed by the EULA which You will be required to accept when You sign up to use the App.
1.4. “EULA” means the End User License Agreement applicable to the App.
1.5. “Notch” means Notch Interfaces, Inc. (www.wearnotch.com)
1.6. “Product” means the 4D Motion System, Third Party Hardware, App, and/or Accessories ordered by You pursuant to the Order Form.
1.7. “Third Party Hardware” means the electronic sensor and docking station that is manufactured by Notch Interfaces Inc. and provided by 4D Motion as part of the 4D Motion System.
1.8. “Website” means the website through which 4D Motion makes the Product available for purchase.
- Ordering Products; Shipping.
2.1. Ordering Products. You may purchase Product(s) through 4D Motion’s Website. Upon purchase of Product(s), 4D Motion will send You an order confirmation email.
2.2. Shipping. 4D Motion shall ship Product(s) F.O.B. Origin via either United States Postal Service Priority Mail, UPS Ground or FEDEX Ground. Risk of loss, damage or destruction of or to any Product(s) passes to You upon delivery of the Product(s) to the common carrier. 4D Motion will send You a shipping confirmation email upon shipment of your Product(s).
- Prices and Payment. For each Product You purchase,You agree to pay 4D Motion the total purchase price made know to You when You purchase the Product.
- Product Changes. 4D Motion reserves the right, in its sole discretion, to provide new features and/or functionality for the Product or otherwise discontinue the sale of any Product without any liability to You.
5.1. “Confidential Information” means nonpublic information revealed by or through a Party (whether in writing, orally or by another means) (the “Disclosing Party”) to the other Party (the “Receiving Party”) including, without limitation, (i) information expressly or implicitly marked or disclosed as confidential, including, without limitation, all forms and types of financial, business, scientific, technical, economic, or engineering information including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing; (ii) information traditionally recognized as proprietary trade secrets; and (iii) all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. For the avoidance of doubt, the 4D Motion System and any and all intellectual property embodied therein or related to shall be considered 4D Motion’s Confidential Information. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of the Receiving Party; (ii) is documented as being known to the Receiving Party without any obligation of confidentiality prior to its disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who did not receive it, directly or indirectly, from the Disclosing Party.
5.2. The Receiving Party will (i) protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care), (ii) use such Confidential Information only in connection with its performance of this Agreement; (ii) restrict disclosure of such Confidential Information to its employees and contractors who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement and who are bound to at least the same level of confidentiality required by this Section, and have agreed in writing to the same level of confidentiality as set forth here, and (iii) not disclose such Confidential Information to any third party without the Disclosing Party’s prior written consent.
5.3. If a Party is requested to disclose any of the other Party’s Confidential Information pursuant to any judicial or governmental order, that Party will not disclose the Confidential Information without first giving the other Party written notice of the request and sufficient opportunity to contest the order, to the extent such notice and opportunity to contest may be lawfully given.
5.4. The Receiving Party acknowledges that in the event of a breach of this Agreement by the Receiving Party, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party engages in, or threatens to engage in any act which violates any provision of this Agreement, the Disclosing Party shall be entitled, in addition to all other remedies which may be available to it under law, to injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement. The Disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
- Warranty; Disclaimer; Limitation of Liability.
6.1. 4D Motion Warranty. 4D Motion’s warranties for the App are set forth in the EULA.
6.2. Third Party Hardware Warranties. 4D Motion does not warrant and, unless the Product Protection Plan has been purchased pursuant to Section 7, is not responsible for any Third Party Hardware. Your sole and exclusive rights and remedies with respect to any such Third Party Hardware are against Notch and not against 4D Motion. However, to the extent permitted by 4D Motion’s agreement with Notch, 4D Motion shall either deliver the Notch’s warranty directly to You or pass through, to the extent available, Notch’s warranty to You. 4D Motion will coordinate with, and be the point of contact for resolution of the problem through, Notch and, upon becoming aware of a problem, will notify Notch and will use commercially reasonable efforts to cause Notch to promptly repair or replace the nonconforming item in accordance with Notch’s corresponding warranty policy. To obtain warranty service for the Third Party Hardware, You must first inspect and test the Third Party Hardware in accordance with protocols provided by Notch. If problems persist, You should go to the Notch’s return warranty website at www.wearnotch.com/warranty, where You will be guided through the return process, which may include the submission of logs, the submission of video showing the malfunctioning of the Third Party Hardware, and retrieval of a Return Merchandise Authorization. You must deliver the Third Party Hardware, in either its original packaging or packaging providing an equal degree of protection, to the address specified by Notch. In accordance with applicable law, the third party may require that You furnish proof of purchase details and/or comply with registration requirements before receiving warranty service. You are solely responsible to backup any data, software, or other materials You may have stored or preserved on the Third Party Hardware because it is likely that such data, software, or other materials will be lost or reformatted during service, and the third party will not be responsible for any such damage or loss.
6.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE.” 4D MOTION MAKES NO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY PRODUCT YOU PURCHASE HEREUNDER INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 4D MOTION OR ANY 4D MOTION AUTHORIZED REPRESENTATIVE SHALL CONSTITUTE A WARRANTY. YOU ASSUME ALL RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE OF THE PRODUCT. 4D MOTION MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE PRODUCT FOR ANY PURPOSE. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so such limitations or exclusions may not apply to You.
6.4. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, 4D MOTION WILL (1) IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS; LOSS OF GOODWILL OR REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE, OR CORRUPTION OF DATA) ARISING FROM OR RELATING TO THE PRODUCT OR ITS USE, WHETHER CLAIMED IN AN ACTION UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND (2) IN NO EVENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ACTUAL DAMAGES ARISING FROM OR RELATING TO THE PRODUCT OR ITS USE, IN EXCESS OF THE PRICE PAID BY YOU FOR THE PRODUCT. YOU ASSUME ALL RISK OF PERSONAL INJURY TO YOU, OR ANY THIRD PARTY ASSOCIATED WITH THE USE OF THE PRODUCT. Some states and/or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to You.
- Product Protection. If You have purchased a Product Protection Plan, 4D Motion shall provide the applicable support services as set forth on http://shopping.na1.netsuite.com/s.nl/c.3703581/sc.41/.f (“Product Protection Plan”).
- Miscellaneous. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. You may not assign any of your rights or obligations under this Agreement without 4D Motion’s prior written consent. 4D Motion may freely assign its rights or obligations under this Agreement without your prior written consent, including to a purchaser of all or substantially all of 4D Motion’s assets or business or in connection with 4D Motion’s merger, consolidation, change of control or similar transaction. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to the conflict of laws provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of New Jersey. The Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.