These Terms of Use (this “Agreement”) are a binding agreement between you (“User” or “you”) and RCX Sports, LLC, a Delaware limited liability company (“RCX,” “we,” or “us”). This Agreement together with any documents it expressly incorporates by reference (collectively, these “Terms”), governs your access to and use of the website located at www.RCXSports.com (the “Website”) or any other website that links to this Agreement, any mobile and/or desktop applications we may provide, on or through the Website, a third-party platform, or otherwise, and any associated content, functionality or services provided by us (together with the Website, collectively, the “Services”).
Please read these Terms before you download, access, register for an Account (as defined herein) on, or start to use the Services. BY USING THE SERVICES, REGISTERING FOR AN ACCOUNT TO USE THE SERVICES (AN “ACCOUNT”), OR BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS IF THIS OPTION IS MADE AVAILABLE TO YOU, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE IN YOUR JURISDICTION OF RESIDENCE AND HAVE THE REQUISITE CAPACITY TO FORM A BINDING CONTRACT AND YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS AND OUR PRIVACY POLICY (“PRIVACY POLICY”), FOUND AT rcxfoundation.wpengine.com/privacy-policy, AND ANY OTHER TERMS OR CONDITIONS WHICH MAY APPLY TO THE SERVICES, ALL OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN SECTION 17. If you do not want to agree to these Terms or Privacy Policy you must not download, access, register for an Account on, or use the Services.
IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THESE TERMS AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THESE TERMS. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY IN ADDITION TO YOU.
1. Changes to these Terms.
A. We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter.
B. Your continued use of the Services following the posting of revised Terms means that you accept and agree to these changes.
2. Intended Audience. THE SERVICES ARE NOT DIRECTED TO, OR INTENDED FOR, CHILDREN UNDER 13 YEARS OF AGE. RCX understands that protecting the privacy of young children is important. For that reason, no personal information should be submitted through the Services by users under 13 years of age.
3. Registration.
A. Registration. To access and use certain portions of the Services, you must register for an Account. Certain portions of the Website may be available to persons that visit the Website without registering an account (“Website Visitors”), including those portions before your Account registration is accepted. We reserve the right to decline a Website Visitor’s request to register an Account and may terminate or suspend an Account, for any or no reason, including, without limitation, failing to meet the eligibility requirements set forth in these Terms. If you create an Account as an employee or agent on behalf of a company or other entity, you represent and warrant that you are authorized to enter into binding contracts, including these Terms, on behalf of yourself and the company or entity you represent. You agree that you are responsible for all activities on your Account.
B. Account Profile. To register for an Account, you must complete a user profile (“Profile”), which you consent to be shown to other Users at our discretion. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Services or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your skills, your qualifications, or any other information requested of you. Further, you agree to correct any such information that is or becomes false or misleading.
C. Identity and Location Verification. When you register for an Account and from time to time thereafter, each Account and Profile may be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your location. You authorize us, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address, subject to applicable law. When requested, you must timely provide us with complete information about yourself.
D. Account Permissions. You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business or organization. By granting other Users permissions under your Account, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account. If any such User violates these Terms, it may affect your ability to use the Services. Upon closure of an Account, RCX may close any or all related Accounts.
E. Usernames and Passwords. When you register for an Account, you will be asked to choose a username or a username will be assigned to you and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person. You authorize us to assume that any person using the Services with your username and password is you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Services.
4. User Requirements.
A. You are responsible for:
i. Making all arrangements necessary for you to have access to and make use of the Services.
ii. Ensuring that all persons who access and use the Services through your internet connection or your Account, will comply these Terms.
B. You agree to comply with all applicable local, state, national and foreign laws, treaties and regulations in connection with your access and use of the Services, including those related to data privacy. You agree to promptly notify RCX of any violation of this Section.
5. Content; Conduct.
A. Through using the Services, you may have the ability to make content and data available to RCX and other Users (“User Content”). All User Content must comply with these Terms and any content guidelines we may establish from time to time. Without limiting the generality of the foregoing, User Content must not:
i. Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
ii. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
iii. Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
iv. Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or these Terms.
v. Intend to deceive or act in any way reasonably likely to deceive any person.
vi. Promote any illegal activity, or advocate, promote, or assist any unlawful act.
vii. Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
viii. Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
ix. Involve commercial activities or sales outside the scope of the Service, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
x. Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
B. Any User Content you make publically available to RCX or other Users will be considered non-confidential and non-proprietary. By making any User Content publically available to RCX or other Users on or through the Services, you grant to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for the purpose of providing the Services.
C. You represent and warrant that:
i. You own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns.
ii. All of your User Content do and will comply with these Terms.
D. You understand and acknowledge that you are responsible for any User Content made available by you, and you, not us, have full responsibility for such User Content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any other Users or any third party for the content or accuracy of any User Content made available on or through the Services or any action or inaction based on the foregoing.
E. RCX does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content, including, without limitation, if such User Content is legally actionable or defamatory. You are solely responsible for your reliance on the User Content of another, including, without limitation, relying on the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by you against other Users or third parties as a result or in connection with your reliance on User Content. RCX is not legally responsible for User Content or reliance on User Content, including, without limitation, feedback or comments, posted or made available on the Services by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the Services and to protect Users from abuse, RCX reserves the right (but is under no obligation) to remove posted User Content, including, without limitation, feedback or information, that, in RCX’s sole judgment, violates these Terms or negatively affects the Services or otherwise is inconsistent with the business interests of RCX. You acknowledge and agree that you will notify RCX of any error or inaccurate statement in your User Content, and, that if you do not do so, RCX or other Users or third parties may rely on the accuracy of such information.
F. We have the right but not the obligation to:
(1) Remove or refuse to post any User Content for any or no reason in our sole discretion.
(2) Take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates these Terms, is defamatory, offensive, inaccurate, deceptive or misleading, illegal, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for the RCX or any User.
(3) Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
(4) Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
(5) Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
G. 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 anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS THE RCX INDEMNIFIED PARTIES (DEFINED IN SECTION 14) AND EACH OF THEIR AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
H. However, we cannot review all material before it is posted, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.
6. Intellectual Property
A. Ownership. The Services and their entire contents, features and functionality (including but not limited to all information, software, analysis, data, text, displays, images, video and audio, “look and feel,” and the design, selection and arrangement thereof), are owned by RCX, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. User grants RCX a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into its software or Services any suggestions, enhancement requests, recommendations, or other feedback provided by User relating to the Services.
B. License. These Terms permit you to use the Services solely for your personal or internal business use. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the materials provided on or through the Services except as follows:
i. you may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
ii. you may store files that are automatically cached by your computer or personal electronic device for display enhancement purposes.
iii. if we provide social media features with certain content, you may take such actions as are enabled by such features.
C. Restrictions. User shall not:
i. copy the Services or any part thereof, except as expressly permitted by these Terms;
ii. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services or any part thereof;
iii. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
iv. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
v. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time;
vi. send or store (a) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates third party privacy rights; or (b) material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
vii. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services; or
viii. access or use the Services, or any features or functionality of the Services, for purposes competitive with the business of RCX or for the purpose of benchmarking the Services, or monitoring their availability.
D. Reservation of Rights. No right, title or interest in or to the Services and their entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) is transferred to you, and all rights not expressly granted are reserved by RCX. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
E. Trademarks. You understand and agree that you shall have no right to use any of the RCX Marks (as defined below) for any purpose whatsoever without the prior written approval of RCX, and such approval may be withheld in RCX’s sole discretion. For purposes of these Terms, “RCX Marks” means the names, logos, symbols, emblems and designs of RCX and its affiliates and any indicia adopted for commercial purposes by RCX or any of its affiliates. You acknowledge and agree that all right, title, and interest in and to the RCX Marks belong to RCX. All other names, logos, product and service names, designs and slogans displayed on or through the Services are the trademarks of their respective owners.
F. Release. YOU COVENANT NOT TO SUE OR MAKE OR ASSERT AGAINST ANY RCX INDEMNIFIED PARTY ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES.
7. Copyright Infringement.
A. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Services infringe your copyright, you may request removal of those materials (or access to them) from the Services by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
i. Your physical or electronic signature.
ii. Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works.
iii. Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
iv. Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
v. A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
vi. A statement that the information in the written notice is accurate.
vii. A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
B. Our designated copyright agent to receive DMCA Notices is:
Attn: RCX Terms of Use (DMCA)
RCX Sports, LLC
250 Hembree Park Drive, Suite 100
Roswell, GA 30076
Email: privacy@rcxsports.com
C. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
D. Please be aware that if you knowingly materially misrepresent that material or activity on the Website or related to the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
8. Confidentiality.
A. Definition. In connection with the Terms and while accessing the Services, User may have access to certain non-public information, documents and materials relating to our business, irrespective of the form of communication (oral, written, electronic or otherwise) along with all notes, analyses, compilations, forecasts, data, translations, studies, memoranda, copies, extracts, reproductions or other documents that contain or otherwise reflect such information, documents and materials belonging to, or in which the supplier of the information has any rights or interest, project information (“Confidential Information”). Confidential Information shall include information, documents and materials related to pricing, rates, fees, or other similar information, training methods, business practices, plans, projections, trade secrets, account information, research information, accounting information, human resources and personnel information, marketing/sales information, third party contracts, licenses, audits, regulatory compliance information, and all intellectual property owned or licensed by use.
B. Exclusions. The confidentiality obligations herein will not apply to any Confidential Information which: (a) is or becomes generally available to and known by the public (other than as a result of a non-permitted disclosure or other wrongful act directly or indirectly by User or its representatives); (b) is or becomes available to the User on a non-confidential basis from a source other than RCX or its representatives; provided, however, that User had no knowledge that such source was at the time of disclosure to User bound by a confidentiality agreement or other obligation of secrecy which was breached by the disclosure; and provided, further, that if User later becomes aware that the source did not have the right to disclose such information, it will use commercially reasonable efforts to restrict its future use and disclosure of the Confidential Information to be consistent with these Terms; (c) has been or is hereafter independently acquired or developed by User or its representatives without reference to such Confidential Information and without otherwise violating any confidentiality agreement with, or other obligation of secrecy to, RCX; (d) was in the possession of User or its affiliates at the time of disclosure by RCX without restriction as to confidentiality; or (e) is required (by oral question, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to be disclosed by any governmental entity or pursuant to applicable law; provided, however, that User (i) uses all commercially reasonable efforts to provide RCX with written notice of such request or demand as promptly as practicable under the circumstances so that RCX will have an opportunity to seek an appropriate protective order or other appropriate remedy, or waive compliance with the provisions of these Terms, (ii) furnishes only that portion of the Confidential Information which is, in the opinion of User’s counsel, legally required and (iii) takes, and causes its representatives to take, all other reasonable steps necessary to obtain confidential treatment for any such Confidential Information required to be furnished.
C. Confidentiality Obligations. User will use the Confidential Information of the information owner solely for the purpose of performing its obligations or exercising its rights under these Terms, and not for any other purpose, including the purpose of competing with RCX. User will keep such Confidential Information confidential and will not disclose any Confidential Information to any third party without the prior written consent of RCX. User will exercise at least the same degree of care to safeguard the confidentiality of such Confidential Information as it does to safeguard its own proprietary confidential information of equal importance, but not less than a reasonable degree of care. User will disclose such Confidential Information only to such of the User’s representatives who have a need to know the Confidential Information for the purpose of performing its obligations or exercising its rights under these Terms. User will ensure, by instruction, contract, or otherwise with its representatives that such representatives comply with the provisions of these Terms. User will be responsible in the event of any breach of the User’s representatives of such agreements. User will promptly notify RCX in the event that User or its representatives learn of any unauthorized use or disclosure of such Confidential Information, and will promptly take all reasonable actions necessary to correct and prevent such use or disclosure. The confidentiality obligations under this Section 8 shall continue for a period of three (3) years following any termination or expiration of these Terms; provided, however, that the obligations of this Section shall continue for as long as the Services or the components of them are protectable as trade secrets.
9. Privacy Policy. All information we collect or that you provide on or through the Services is subject to our Privacy Policy, the terms of which are hereby incorporated herein by reference. You consent to our use of any information provided in a manner consistent with our Privacy Policy.
10. Payment. If you buy any services or products on or through the Services (“Paid Content”), you agree to pay us the applicable fees and taxes and to agree to additional terms specific to the Paid Content. Failure to pay these fees will result in the termination of any Paid Content. Also, you agree that:
A. Your purchase may be subject to foreign exchange fees or differences in prices based on location (e.g. exchange rates).
B. We may store and continue billing your payment method (e.g. credit card) even after it has expired, to avoid interruptions in your Paid Content and to use to pay other Paid Content you may buy.
C. Unless otherwise provided by the applicable terms or by applicable law, all purchases of Paid Content are final and non-refundable.
D. We may calculate taxes payable by you based on the billing information that you provide us at the time of purchase.
11. Service Content & Third-Party Links.
A. You may not rely on any information and opinions expressed on or through the Services, including, without limitation, User Content and any opinions or guidance provided on or through the Services, for any purpose. In all instances, including business and financial decisions, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of any information and opinions expressed through any of the Services. Use of the information and opinions expressed through any of the Services is at your own risk and under no circumstances will the RCX Indemnified Parties be liable for any loss or damage caused by your reliance on any information and opinions expressed on or through the Services.
B. In many instances, information and opinions expressed on or through the Services will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement offered on or through the Services.
C. The Services may link or contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
12. Warranty Disclaimer.
A. YOU AGREE NOT TO RELY ON THE SERVICES, ANY INFORMATION PROVIDED ON OR THROUGH THE SERVICES, OR THE CONTINUATION OF THE SERVICES. RCX DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES RCX MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY DISCLAIM ANY WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF EXECUTING UPON ANY ADVICE OBTAINED THROUGH ANY SERVICES AND MAKING BUSINESS OR FINANCIAL DECISIONS THROUGH THE SERVICES. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. USER’S SOLE AND EXCLUSIVE REMEDY AGAINST US WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION IS FOR USER TO DISCONTINUE USER’S USE OF THE SERVICES.
13. Limitation of Liability.
A. The RCX Indemnified Parties are not liable, and you agree not to hold any RCX Indemnified Party responsible, for any damages or losses arising out of or in connection with these Terms and/or use of the Services, including, without limitation:
i. your use of or your inability to use the Services or any portion thereof;
ii. delays or disruptions in the Services;
iii. viruses or other malicious software obtained by accessing, or linking to, the Services;
iv. glitches, bugs, errors, or inaccuracies of any kind in the Services;
v. damage to your hardware device from the use of the Services;
vi. the content, actions, or inactions of third parties’ use of the Services;
vii. a suspension or other action taken with respect to your Account;
viii. your reliance on the quality, accuracy, or reliability of ratings, recommendations, and feedback (including their content, order, and display), User Content, or metrics found on, used on, or made available through the Services; and
ix. your need to modify practices, content, or behavior or your loss of or inability to use the Services, as a result of changes to these Terms.
B. ADDITIONALLY, IN NO EVENT WILL ANY RCX INDEMNIFIED PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES. THE CUMULATIVE LIABILITY OF THE RCX INDEMNIFIED PARTIES TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND/OR THE SERVICES WILL NOT EXCEED THE LESSER OF: (A) $500; OR (B) ANY FEES PAID TO RCX BY USER DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND/OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU, BUT DO APPLY TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW.
14. Indemnification.
A. You will indemnify, defend, and hold harmless RCX, any sponsors or partners of RCX, and each of their respective past, present and future affiliates and each of their respective predecessors, successors and assigns and each of their respective past, present and future, direct or indirect, owners, partners, principals, managers, members, shareholders, directors, officers, agents, trustees, employees, attorneys and other representatives (each a “RCX Indemnified Party” and collectively the “RCX Indemnified Parties”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Services by you or your agents, including any payment obligations or default incurred through use of the Services; (b) failure to comply with these Terms; (c) failure to comply with applicable law by you or your agents; (d) negligence, willful misconduct, or fraud by you or your agents; and (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 14, your agents includes, without limitation, any person who has apparent authority to access or use your Account demonstrated by using your username and password.
B. “Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
C. “Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
15. Term and Termination.
A. Term. The term of these Terms shall commence on the date on which you agree to be bound by these Terms (“Effective Date”) and shall continue until terminated as provided herein. Upon termination of these Terms for any reason, all rights and subscriptions granted to User shall immediately terminate, and the User shall cease using the Services.
B. Termination
i. Unless both you and RCX expressly agree otherwise in writing, we may, in our sole discretion, at any time, without explanation, upon written notice to you, terminate these Terms. Upon termination of these Terms, your right to use the Services is automatically revoked, and your Account will be closed.
ii. Without limiting the other rights or remedies available to us, we may, but are not obligated to, temporarily or indefinitely revoke or suspend your access to the Services, deny your registration, or permanently revoke your access to the Services and refuse to provide any or all the Services to you if: (i) you breach the letter or spirit of any terms and conditions of these Terms, as determined in our sole discretion; (ii) we suspect or become aware that you have provided false or misleading information to us or other Users; or
(iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or RCX or our affiliates; or (iv) may be contrary to the interests of the Services, or the User community; or (v) may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Services under the same Account or a different Account or re-register under a new Account without our prior written consent.
C. Survival. After these Terms terminate, the terms and conditions of these Terms that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, protecting intellectual property, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after these Terms have terminated. Without limiting any other provisions of the Terms, the termination of this Agreement for any reason will not release you from any obligations incurred prior to termination of these Terms or that thereafter may accrue in respect of any act or omission prior to such termination.
16. Miscellaneous.
A. Waiver and Severability.
i. No waiver by us 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 by us to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
ii. In the event that any or any part of the terms contained in these Terms shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such terms shall to that extent be severed from the remaining terms which shall continue to be valid and enforceable to the fullest extent permitted by the applicable law.
B. Entire Agreement.
i. These Terms and any document incorporated into them by reference, including, without limitation, the Privacy Policy, constitute the sole and entire agreement between you and RCX with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services.
ii. No modification or amendment to these Terms will be binding upon us unless in a written instrument signed by a duly authorized representative of RCX or posted on or through the Services by us. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these terms.
C. Assignability. You may not assign these Terms, or any of its rights or obligations hereunder, without the prior written consent of RCX in the form of a written instrument signed by a duly authorized representative of RCX. We may freely assign these Terms without your consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, these Terms are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
D. Force Majeure. We will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, epidemic, pandemic, national health emergencies, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations, or restrictions imposed by law, or any other similar conditions beyond the reasonable control of such party.
E. Consent to Electronic Records. In connection with these Terms, you may be entitled to receive certain records from us or our affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Website and Service, you give us permission to provide these records to you electronically instead of in paper form.
F. Governing Law. Your use of the Services and downloads from it, and the operation of these Terms, shall be governed in accordance with the laws of the State of Delaware, without regard to conflict of law provisions.
17. Dispute Resolution; Arbitration; Class Action Waiver
A. Any dispute, claim or controversy among the parties arising out of or relating to these Terms and/or the Services (“Dispute”) shall be finally resolved by and through binding arbitration in accordance with the Federal Arbitration Act to the exclusion of any other Federal, state or municipal law of arbitration. Both the foregoing agreement of the parties to arbitrate any and all Disputes, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration, shall be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction.
B. For any Dispute, the place of Arbitration shall be in Fulton County, Georgia.
C. The cost of the arbitration proceeding, including, without limitation, each party’s attorneys’ fees and costs, shall be borne by the unsuccessful party or, at the discretion of the arbitrators, may be prorated between the parties in such proportion as the arbitrators determine to be equitable and shall be awarded as part of the award.
D. RESTRICTIONS ON ARBITRATION: ALL DISPUTES, REGARDLESS OF THE DATE OF ACCRUAL OF SUCH DISPUTE, SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. ANY DISPUTES YOU MAY HAVE AGAINST RCX OR ANY RCX INDEMNIFIED PARTY, AND ANY OF THEIR AFFILIATES, SUBSIDIARIES, LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS, YOU HEREBY AGREE TO BIFURCATE AND ARBITRATE AGAINST THEM INDIVIDUALLY IN FULTON COUNTY, GEORGIA. YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT. YOU AND RCX AGREE THAT THE ARBITRATORS HAVE NO AUTHORITY TO ORDER CONSOLIDATION OR CLASS ARBITRATION OR TO CONDUCT CLASS-WIDE ARBITRATION PROCEEDINGS, AND ARE ONLY AUTHORIZED TO RESOLVE THE INDIVIDUAL DISPUTES BETWEEN YOU AND ANY RCX INDEMNIFIED PARTY AND THEIR AFFILIATES, SUBSIDIARIES, LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS. FURTHER, YOU WILL NOT HAVE THE RIGHT TO CONSOLIDATION OR JOINDER OF INDIVIDUAL DISPUTES OR ARBITRATIONS, TO HAVE ANY DISPUTE ARBITRATED ON A CLASS ACTION BASIS, OR TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.
E. THE VALIDITY, EFFECT, AND ENFORCEABILITY OF THE FOREGOING WAIVER OF CLASS ACTION LAWSUIT AND CLASS-WIDE ARBITRATION, IF CHALLENGED, ARE TO BE DETERMINED SOLELY AND EXCLUSIVELY BY THE STATE AND FEDERAL COURTS LOCATED IN FULTON COUNTY, GEORGIA.
F. WITHOUT WAIVING THE RIGHT TO APPEAL SUCH DECISION, SHOULD ANY PORTION OF THIS SECTION 17 BE STRICKEN FROM THESE TERMS OF USE OR DEEMED OTHERWISE INVALID OR UNENFORCEABLE, THEN THIS ENTIRE SECTION 17 (OTHER THAN THIS SENTENCE) SHALL BE STRICKEN FROM THIS AGREEMENT AND ANY AND ALL DISPUTES SHALL PROCEED IN THE STATE AND FEDERAL COURTS LOCATED IN FULTON COUNTY, GEORGIA AND BE DECIDED BY A JUDGE, SITTING WITHOUT A JURY, ACCORDING TO APPLICABLE COURT RULES AND PROCEDURES, AND NOT AS A CLASS ACTION LAWSUIT.
18. Contact. Should you have questions or concerns about these Terms, please contact us at privacy@rcxsports.com.