All your activity on the site, interactions with us and any orders you place, are bound by these conditions.
A. About Us: Welcome to benhogangolf.com (the “Website”). Sports Brands Inc. d/b/a Ben Hogan Golf (“Ben Hogan Golf”, “us”, “we”, or “our”) provides a venue to enable people and companies browse and purchase goods and other products which are offered for sale by us (collectively, “Items”). We do this through the Website and by the Items and services otherwise offered by us (together with the Website, Content (defined below), and all of the Items and services offered by us, the “Services”). By accessing or using the Services, you the end user of the Services (collectively, “User”, “you”, or “your”), expressly agree to be bound to and to abide by these Terms of Service (“Terms”), our Privacy Policy, and any other policy we may develop from time to time (collectively, “Policies”), which create legal and enforceable agreements whether or not you register for a user account with us (an “Account”) with us, or whether or not you obtain, transmit, post, send, receive, link, email, submit, upload, download, or otherwise communicate (“Post”): User Content (defined below), text, images, video, audio, photographs, graphics, private messages, comments, data, information, links, software, music, or any other input and data (collectively, “Content”) using the Services to us or other Users. If you do not agree to be bound to or to abide by these Terms of Service and our other Policies, do not browse the Website or use the Services.
BY ACCESSING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE PROVISIONS, CONDITIONS AND NOTICES CONTAINED IN THESE TERMS JUST AS IF YOU SIGNED THESE TERMS.
B. Our Terms of Service: 1. Service Conditions. You cannot not use the Services unless: (a) you are at least 18 years of age, or (b) you are 13 years of age or older, obtain the consent of your parent or legal guardian to use the Services, and your parent or legal guardian agrees to be bound by these Terms and agrees to be responsible for your use of the Services on your behalf. By accessing the Services, you represent and warrant to us that: (i) either subsection (a) or (b) above is true; (ii) you the right, authority and capacity to agree to, and abide by these Terms; and (iii) you shall not use any rights granted hereunder for any unlawful purpose or for any purpose which violates these Terms, as determined by us.
2. Grant of License. These Terms provide you with a personal, revocable, non-exclusive, non-assignable, non-transferable, limited and temporary license to access and use the Services. We shall be entitled to terminate, restrict, or suspend this license granted to you with immediate effect and without notice, including removing your ability to access or use the Services, for any reason or no reason, as determined by us.
3. Mobile Devices. If you are accessing the Services via a mobile device or tablet which is owned or controlled by you (a “Device”) then, subject to your compliance with these Terms and our Policies, the license granted hereunder allows you to access the Services using your Device. You understand and agree that use of the Services via your Device may result in data or other charges from your mobile communication service provider and you expressly release, indemnify, hold harmless, and defend us from any and all liability relating to any such charges and/or your Device.
4. Account.
(a) To use certain aspects of the Services, you must create an Account. In connection with the Services, you agree to provide true, accurate, current and complete information as prompted by our registration forms, and to maintain and promptly update the information you provide to us in order to keep your information true, accurate, current and complete. It is your obligation to maintain and control passwords to your Account. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES AND/OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You agree to immediately notify us of any unauthorized uses of your username and password and/or any other breaches of security. There is no assumption by us of your responsibility to notify your local law enforcement agency of any identity theft. You agree we will not be liable for any loss or damages caused by your failure to comply with your security obligations.
(b) We reserve the right to allow Users to create an Account by allowing the Services to access information from one or more of your existing Social Media Profiles such as Facebook, Twitter, or Instagram (“Social Media Profiles”). By granting us access to any Social Media Profiles, you understand that we will access, make available and store any Content that you have provided to and stored in your Social Media Profiles so that it is available on and through the Services and your Account, subject to our Privacy Policy. We also may allow Users to share User Content (defined below) using Social Media Profiles in connection with the Services. You understand that if you share Content using Social Media Profiles, we have no control over how that Content may be used by others and we have no liability for how that Content may be used by others. Please see our Privacy Policy for more information.
5. Payment, Returns, Exchanges Cancelations.
(a) Payment. In connection with any services or Items you purchase using the Services, you agree to pay us the amounts displayed on the Website or in an applicable purchase order, together with any shipping charges that may apply to a given transaction, each as determined by us. The policies and fees that are disclosed to you when you purchase an Item are a part of these Terms. Further, you authorize us to charge your chosen payment method (credit card, debit card, et cetera) in connection with all fees incurred by you in the Services, as determined by us. In connection with any fees paid by you, you agree: (i) to only provide valid and current payment information; (ii) that we may use the tools, software or services of our payment processor authorize.net (“Payment Processor”) to process fees and transactions on our behalf; (iii) to promptly pay all fees and amounts assessed by us upon demand; and (iv) to abide by the terms and policies of our Payment Processor (see authorize.net for more information). We are not responsible or liable for any activities or conduct of our Payment Processor, and you agree to hold us harmless, indemnify, defend, and expressly release us, from any and all liability relating to the conduct of our Payment Processor. All fees shall be paid in US Dollars. You understand and agree that we do not accept, offer, or issue any returns, refunds, or credits of any fees paid by you to us.
(b) Returns. You may return eligible Items that you purchased from us at anytime within 30 days of receiving your Items, as determined by us, provided that you comply with this Section 5. However, custom built and other Items we designate from time to time cannot be returned for any reason. To be eligible for return, all Items must be unused and in the original packaging, as determined by us, and be accompanied by a valid Return Merchandise Authorization (“RMA”) issued by us. To receive an RMA number, call us at +1 (682) 243-5745 or email us at help@benhogangolf.com. Once you have received an email with your RMA number and return form, fill out the form and send it back inside the box with your Item and your RMA number on the outside of the return box. You agree that you are responsible for any shipping charges which are incurred by you in connection with sending any Items to us for return processing. Any package sent to us without a visible RMA number on the outside of the box will not be eligible for return and returned to you at your cost. We will contact you when we receive an eligible and properly returned Item to arrange a credit/refund of the remaining amounts owed to you. Items must be returned in the condition in which they received.
(b) Wrong Item Exchanges. If we erroneously send you an Item other than the Item you ordered from us, you must call us at +1 (682) 243-5745 or email us at help@benhogangolf.com to request an exchange within 7 calendar days of receiving your Items. If we determine that we have sent the wrong Item to you, we will provide you with instructions to process your exchange. Then, you must ship the Item to be exchanged and we will cover the cost of shipping that Item to be exchanged, provided that the shipping costs do not exceed a reasonable amount, as determined by us in our sole discretion. Upon receipt of the Item, if we determine that the Item is unused and in acceptable condition, we will send you the correct Item as soon as we are able.
(c) Repair Under Warranty. We do not offer a warranty with respect to Items. Only the manufacturer’s warranty is applicable to any Item purchased by you. If an Item becomes non-functional at any time that the Item is covered by the manufacturer’s warranty (typically 12 months from the date of purchase for new items), we will do our best to coordinate the repair or replacement of the Item with the manufacturer at no cost to you. To begin the process, email a picture of the problem and your order number to our warranty department at help@benhogangolf.com and we’ll take it from there. Open box, refurbished or incomplete items items carry no warranty. We make no representations, or warranties regarding any Items. We are not responsible for any third party manufacturer’s refusal or failure to honor or process any warranty claim you may have and you expressly release us from any such claims. Please see Section 12 below for more information.
(d) Cancelations. You may cancel an order of services or Items for any reason or no reason any time prior to the date and time we release your order for dispatch, and if you so request a cancelation prior to that time, we will refund any fees that you paid to us within 30 calendar days. You agree that we may cancel any order of Items placed by you for any reason or no reason, as determined by us in our sole discretion (examples include but are not limited to pricing errors, advertising errors, out of stock issues, and fraud control). In the event that we cancel your Item order, we will refund you within a commercially reasonable time after we notify you of any such cancelation.
6. Linking To The Website. You are granted a limited, revocable, non-exclusive right to create a text hyperlink to the Website for noncommercial purposes, provided that such link does not portray Ben Hogan Golf or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking website does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time and for any reason or no reason, as determined by us in our sole discretion. Upon such time as we notify you that your limited right to link to the Website has been revoked by us, you agree to immediately cease using and remove any and all links to the Website which were previously created, used, or controlled by you. You may not use a Ben Hogan Golf logo or other proprietary graphic of Ben Hogan Golf to link to this Website without the express written permission of Ben Hogan Golf which we may withhold in our absolute discretion. Further, you may not use, frame or utilize framing techniques to enclose any Ben Hogan Golf trademark, logo or other proprietary information, including the images found on the Website, any text or the layout/design of any page or form contained on a page of the Website without Ben Hogan Golf’s express written consent. Except to the extent you may link to the Website as noted above, you are not conveyed any other right or license by implication, estoppel or otherwise.
7. Content and User Content.
(a) By Us. All Posts and Content on the Services, or obtained from a Linked Site (defined below) are provided to you ‘AS IS’, ‘AS AVAILABLE’ and ‘WITH ALL FAULTS’. Ben Hogan Golf provides the Services for informational purposes only and any statements made by us are opinions only. We expressly disclaim all liability related to the accuracy or reliability of any opinion, advice, or Content on the Services or reliance on any opinion, advice, or Content on the Services. All features, Content, specifications, Items and prices of Items and services described or depicted on the Website are subject to change at any time without notice. Ben Hogan Golf makes all reasonable efforts to accurately display the attributes of its Items, including the applicable colors. However, the actual color and attributes that you see will depend on your Device and we cannot guarantee that your Device will accurately display such colors or attributes. The inclusion of any Items or services on the Website at a particular time does not imply or warrant that these Items or services will be available at any time.
(b) Linked Sites.
(i) The Services may link to other sites by allowing you to leave the Services to access third party material or by bringing third party material into the Services via ‘inverse’ hyperlinks and framing technology (a “Linked Site”). The appearance, availability, or your use of URLs or hyperlinks to Linked Sites referenced or included anywhere on the Services or any other form of link or re-direction of your connection to, with or through the Services, does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of Ben Hogan Golf or its Affiliates. We have no discretion to alter, update, or control the Content on a Linked Site. We do not verify, endorse, or have any responsibility for, any such Linked Sites, their business practices (including their privacy policies), or any goods or services associated with or obtained in connection with any Linked Site, whether the or not our logo(s) or sponsorship identification is on the Linked Site as part of a co-branding or promotional arrangement. If any Linked Site obtains or collects personal information from you, in no event shall we assume or have any responsibility or liability. Please read our Privacy Policy which describes how we collect and use your personal information.
(ii) Third Party Products and Services. When you use the Services to purchase products or services from a Linked Site, you are purchasing that product or service directly from the third party Linked Site. Your order is placed with, filled by, and shipped by that third party Linked Site. We have no involvement in any shipment, fulfillment, returns, or refunds associated with any products or services that you purchase from a Liked Site or third party. You understand that you must contact the third party Linked Site directly for inquiries related to your purchase, including but not limited to: returns, shipping, customer service, refunds, or general information. By using the Services, you expressly represent and warrant that you will abide by and will not violate any policies, rules, terms, or conditions of that third party Linked Site.
(iii) Ads. The Services may display third party advertisements, promotional material, and Linked Sites. We may be compensated for your clicks or purchases in connection with these third party advertisements, promotional material, and Linked Sites. Please see our Privacy Policy for more information.
(c) Posted by You.
(i) You are solely responsible for and retain all rights in the Content that you create using the Services or Post on the Website or transmit to us or other Users (“User Content”). You agree that you will not: Post User Content containing nudity, as determined by us; Post User Content of people who have not given permission for their images to be uploaded to the Services; Post User Content that infringes on the intellectual property rights of others; Post any User Content which violates any provision of the use restrictions in Section 10; and/or Post any objectionable User Content as determined by us in our sole discretion. WE ARE NOT RESPONSIBLE FOR ANOTHER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST USING THE SERVICES
(ii) You will retain ownership of such User Content. However, you also agree that by Posting Content anywhere within, on, or using the Services, you automatically grant to us an irrevocable, perpetual, non-exclusive, paid-up, royalty free license to use, copy, sell, and distribute such Content in any way and to prepare derivative or collaborative works of such Content of any kind, as well as authorize us to sublicense any of the aforementioned Content, each as determined by us. You further agree that we have the right to promote any Content through Social Media Profiles, as determined by us in our sole discretion. You agree that any User Content you Post is not being disclosed in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type. To the extent any ‘moral rights’, ‘ancillary rights’, or similar rights in or to the User Content exists and are not exclusively owned by us and to the extent you are able to do so under applicable law, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights. Without limiting the scope of the license granted to us by you hereunder or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to User Content, and to the extent allowed by applicable law, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to User Content you Post on the Website or to us or other Users.
(iii) You represent and warrant that you own or otherwise possess all necessary rights with respect to your User Content, and that your User Content does not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that your User Content is not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, as determined by us.
(iv) You agree that we may but are not obligated to: filter any Content including but not limited to, deleting or replacing expletives or other harmful or offensive language; refuse to display any Content; remove Content from the Services for any reason or no reason, as determined by us; and/or disclose any Content and the circumstances surrounding the use thereof, to any third party for any reason or no reason, as determined by us. We are not responsible for, and will have no liability for, the removal or non-removal of any Content from the Services.
(vi) You agree and understand that you may be held legally responsible for damages suffered by other Users or third parties as the result of your remarks, information, feedback or other Content Posted on the Services that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, Ben Hogan Golf is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other Content posted or made available on the Services. Further, you agree to indemnify, hold harmless, and defend us from any liability and/or damages relating to any Content Posted by you or by a third person using your Account.
(d) Posted by Users or Others. We do not endorse and are not responsible for (i) the Content provided by other Users, (ii) the accuracy or reliability of any opinion, advice, statement, or Content made through the Services, (iii) any Content provided on Linked Sites, or (iv) the capabilities or reliability of any items or service obtained from a Linked Site. There are risks involved with relying on information on the Services, and you expressly assume those risks when using the Services. Under no circumstance will we be liable for any loss or damage caused by your reliance on any Content, items, other information, or services obtained through the Services or a Linked Site.
8. Privacy Policy. By using the Services, you agree to the provisions of our Privacy Policy, which is hereby incorporated by reference. You further agree that we may disclose Personal Data (as defined in our Privacy Policy) according to our Privacy Policy, as determined by us. Please see our Privacy Policy for more information.
9. Intellectual Property.
(a) Trademarks. GOLFOUTLETSUSA, benhogangolf.com, Ben Hogan Golf and Sports Brands Inc., and all other graphics, logos, page headers, button icons, scripts, service names and other Content that we use, manage or control are trademarks, registered trademarks or trade dress of ours or our subsidiaries, officers, employees, independent contractors, suppliers, representatives, advertisers, licensors, licensees, successors, assigns, agents, partners, or other affiliate (collectively “Affiliates”) in the United States or other countries or both. No one may use these trademarks or trade dress in connection with any product or service that is not our product or service without our express written permission. All other trademarks that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by us or any of our Affiliates.
(b) Copyright. Except in the case of Content under license to us, we claim a copyright, and all copyright protection afforded, under international, United States and the State of Nevada laws to all text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software (ours or our software suppliers), and all other Content on the Services. The compilation of all Content on the Services is our exclusive property, and it is similarly protected. We also claim a copyright, and all copyright protection afforded, under international, United States and the laws of the State of Nevada to all material described in the trademarks section above. Your access to all information and Content located on the Services is strictly permitted through the license granted to you under these Terms. Except for the license granted in these Terms, all rights, title and interest in Content, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of ours and other parties. Except as permitted by these Terms, you are prohibited from modifying, copying, distributing, displaying, publishing, selling, licensing, creating derivative works, or using any Content available on or through the Services without our prior written permission, or in the case of Content owned by a third party, without first receiving permission from the owner of that Content. You may not alter or remove any trademark, copyright or other notice from copies of the Content.
(c) Infringement Claims. We respect the intellectual property of others and ask that Users do the same. In connection with the Services, we have adopted and implemented a policy respecting intellectual property that provides for the removal of any infringing or unauthorized materials and for the Account termination, in appropriate circumstances, of Users who are infringe on the intellectual property rights of others. If you believe that a User is, through the use of the Services, unlawfully infringing by submitting unauthorized Content, and wish to have the allegedly infringing or unauthorized material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated copyright agent (“Designated Agent”): your physical or electronic signature; identification of the works or rights that you claim to have been infringed; identification of the Content on the Services that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such Content; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable Content is not authorized by the copyright or other rights owner, its agent, or the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright or other right that has allegedly been infringed or violated or that you are authorized to act on behalf of the copyright or other rights owner. Note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our Designated Agent is:
Dave Murphin 16 Sunset Way #110 Henderson, NV 89014, USA
10. Use Restrictions. You may not use or plan, encourage or help others to use the Services for any purpose or in any manner that is prohibited by these Terms or by applicable law. In using the Services, you agree at all times that you shall not: (a) infringe on the copyrights or other intellectual property rights of Ben Hogan Golf, a User, or a third party (b) copy, distribute, or modify any part of the Services without our prior written authorization; (c) Post inappropriate, inaccurate, false, misleading, or objectionable Content to the Services, as determined by us; (d) transmit any Content which contains software viruses, or other harmful computer code, files or programs; (e) Post Content that falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present; (f) make threats or use profanity; (g) harass, stalk or intimidate other Users; (h) manipulate or exclude identifiers in order to disguise the origin of any Content; (i) disrupt the networks connected to the Services, including but not limited to by: attempting to probe, scan or test the vulnerability of the Services, attempting to breach security or authentication measures without proper authorization, or attempting to interfere with the Services or a User, by means such as overloading, ‘flooding’, ‘mailbombing’ or ‘crashing.’; (j) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services; (k) collect Content, personally identifying information, and/or other information from the Services, or otherwise access the Services, by using any automated means, including but not limited to, ‘robots’, ‘spiders’, ‘scrapers’ and ‘offline readers’, without our prior written approval which we may withhold in our discretion; (l) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, sell, or distribute the Services; (m) rent or lease any rights in the Services in any form to any third party or make the Services available or accessible to third parties; (n) use any communications systems provided by the Services to send unsolicited or unauthorized commercial communications, including but not limited to by email, SMS, MMS, or any other means; (o) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices displayed on the Services; (p) mislead or attempt to mislead or defraud or attempt to defraud or conceal any information relating to Content or other information that you provide to us; (q) link, deep link, ‘frame’ or ‘mirror’ any part of the Services without our prior consent; or (r) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, or inappropriate purpose, or in any manner that breaches these Terms or is otherwise objectionable, as determined by us in our sole discretion.
11. Termination, Restriction, and Suspension.
(a) Termination By You. You may cancel your Account at any time for any reason or no reason by using your Profile dashboard or by notifying us in writing (email to help@benhogangolf.com) is acceptable. Upon cancellation of your Account, access to certain features of the Services may be restricted. Termination of your Account will be effective within a reasonable time after we receive notification of your desire to cancel, as determined by us.
(b) By us. We retain the right to terminate, restrict, or suspend these Terms, your Account, and/or license to access or use the Services at any time in our absolute and sole discretion, without prior notice, for any reason or no reason, as determined by us.
(c) After Termination. Upon termination of your Account and/or license to access or use the Services for any reason, you agree that we may take any measures we deem necessary to prevent you from accessing the Services, including by blocking your IP address. You agree that after termination of your access to the Services, we are not obliged to retain or provide to you any Content or Personal Data (as defined in our Privacy Policy) which was collected by us, but we may elect to do so in our sole discretion, for a duration determined by us.
12. DISCLAIMERS.
(a) ALL ITEMS PURCHASED ON OR THROUGH THE WEBSITE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE ITEMS LISTED OR PURCHASED ON OR THROUGH THE WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY FURTHER EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION RELATING IN ANY WAY TO ITEMS PURCHASED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Ben Hogan Golf OR THROUGH THE WEBSITE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
(b) WITH RESPECT TO THE SERVICES OTHER THAN ITEMS, THE WEBSITE AND CONTENT ARE PROVIDED ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY OR DEATH AS WELL AS DAMAGES TO PERSONAL PROPERTY. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO THE WEBSITE, AND/OR THE SERVICES Ben Hogan Golf EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Ben Hogan Golf MAKES NO WARRANTY THAT THE WEBSITE AND/OR CONTENT WILL MEET YOUR NEEDS, EXPECTATIONS, BE TO YOUR SATISFACTION, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE, BUG-FREE, OR MALWARE-FREE BASIS. Ben Hogan Golf MAKES NO WARRANTY REGARDING THE QUALITY OF THE WEBSITE OR CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Ben Hogan Golf OR THROUGH THE WEBSITE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
13. Release and Waiver of Claims. To the maximum extent permitted by applicable law, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND DISCHARGE all claims, actions, demands, suits, or proceedings (“Claims”) against US and our AFFILIATES, including any and all liability for damages (actual and or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature arising from or in any way related to: (I) THE SERVICES, (II) AN ITEM, (III) YOUR DEVICE (IV) any inaccuracy, untimeliness or incompleteness of a USER’S representations OR WARRANTIES, and/or (V) any inaccuracy, untimeliness, or incompleteness of ANY AND ALL information and/OR CONTENT obtained or accessed by or through the Services. FURTHER, if YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA, you waive your rights under California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You understand that any fact relating to any matter covered by THESE TERMS may be found to be other than now believed to be true, and accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights which you may have had under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
14. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY RELATED TO OR RESULTING FROM AN ITEM, ANY ASPECT OF THE SERVICES, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR DIRECT DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO ANY ASPECT OF THE SERVICES OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages exceed an amount equal to the fees paid by you to us in connection with the Items or Services out of which the Claims arose. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
15. Dispute Resolution.
(a) In the event that any dispute arises with respect to the Services, an Item, these Terms, or any of our Policies, upon our election in our sole discretion, such dispute shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association, in Clark County, Nevada, and at our option, such arbitration shall be before a single neutral arbitrator selected in our sole and absolute discretion. In the event we elect not to require that a dispute arising with respect to the Services, Terms, or any of our Policies be submitted to binding arbitration as described above, any such dispute shall nevertheless be litigated by you and us in the State courts located in Clark County, Nevada or in the U.S. District Court for the District of Nevada, as the case may be. You shall be liable for and shall reimburse us for our expenses and fees, including attorneys’ fees, in the event any arbitration or litigation arises out of, under, or relating to these Terms or any of our Policies, or your use of the Services. By using the Services, you irrevocably agree and consent to be bound to personal jurisdiction of and venue selection in the state courts located in Clark County, Nevada or in the U.S. District Court for the District of Nevada as the case may be, whether either arbitration or litigation arises between us and you. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(b) YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE AGREE OTHERWISE, THE DECISION-MAKER MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE DECISION-MAKER MAY AWARD RELIEF ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
(c) You agree that irreparable harm to us would occur in the event that any of the provisions of these Terms, including but not limiting the provisions of Sections 7, 9, and 10 were not performed fully by you or were otherwise breached by you, and that money damages are an inadequate remedy for breach of the Terms because of the difficulty of ascertaining and quantifying the amount of damage that will be suffered by us in the event that these Terms are not performed in accordance with its provisions or is otherwise breached. It is accordingly hereby acknowledged that, notwithstanding any provision of this Section 15, we shall be entitled to petition the courts mentioned in Section 15(a) for an injunction or injunctions to restrain, enjoin and prevent a failure to perform these Terms by you, without positing bond or other security, and to enforce specifically such provisions of these Terms.
(d) Dispute Resolution Severability. If a court decides that any term or provision relating to our ability to submit any above-mentioned dispute to arbitration or to the above class action wavier, the parties agree to litigate any such dispute according to Section 15(a) above and to replace any other such terms or provisions of Section 15(a) or Section 15(b) with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 15 shall be enforceable as so modified. In any event, the remainder of these Terms will continue to apply. 16. Indemnification. You agree to indemnify, defend, and hold harmless us and our Affiliates from and against any and all Claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating to: your use, misuse, or inability to use the Services; any infringement of a third party’s rights; your Device; a breach of representation or warranty; your User Content; an Item; alterations of, loss of, or unauthorized access to any information sent or received or not sent or received by you or us; any defamatory, offensive, fraudulent, or illegal use of the Services by you; any accidental or improper disclosure of information; and any violation by you of these Terms or any of our other Policies.
17. Survival. Notwithstanding anything herein to the contrary, the provisions of Sections 3, 4, 5, 8, 9, and 12 through 26 of these Terms, as well as any provision of these Terms which in accordance with its terms is intended to survive the termination of these Terms, your Account, or your license to use or access the Services shall survive any such termination.
22. Notification. By using the Services, you agree that we may provide you with any notices or other communications about the Services or your Account electronically: (a) via email (in each case to the address that you provide), SMS message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the Website. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. We will use best efforts to honor a User’s request to opt out of promotional messages, but under no circumstances will we be liability for Posting any Content to Users. We prefer to that you provide us with any notifications via electronic communication. However, you are able to send us paper notifications at the following address: 16 Sunset Way #110, Henderson, NV 89014.
18. Severability; No Waiver. The representations and warranties and/or covenants set forth herein are each to be construed as a separate agreement, independent of any other provisions of these Terms. Further, the invalidity or unenforceability of any provision, word, phrase, clause, sentence, paragraph or section of these Terms shall in no way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section of these Terms, and any such invalid or unenforceable provision that is overbroad shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in these Terms is deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect. Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
19. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us as determined by us.
20. Our Relationship with You. With respect to you, we are an independent contractor only. Nothing in these Terms shall be deemed or is intended to be deemed, nor shall it cause, you and Ben Hogan Golf to be treated as partners, joint venturers, or otherwise as joint associates for profit, or either you or us to be treated as the agent of the other.
21. Third Parties. From time to time, we may engage third parties or Affiliates to assist us in providing certain aspects of the Services, including but not limited to marketing functions. You agree that we may engage such third parties in providing Services to you, as determined by us.
22. Entire Agreement; Modification. These Terms together with our Polices any other document referenced herein, constitutes the entire understanding between us and you with respect to the subject matter hereof. You agree that we may amend, modify, or alter these Terms and/or our Polices at any time in our sole discretion. We will notify you about changes to these Terms by placing the updated Terms on the Website. You agree that your use of the Services after such notification will constitute acceptance by you of such changes to the Terms.
23. Headings. Headings in these Terms are for convenience only, and shall not govern the meaning or interpretation of any provision of these Terms. Further, whenever the context requires, all words, including but not limited to defined capitalized terms, will include the masculine, feminine, and neuter, and each word will include the singular form, plural form, and other conjugations of that word.
24. Governing Law; English Language. You agree that: (a) the Services shall be deemed solely based in Clark County, Nevada (where we have our headquarters), and (b) the Services shall be deemed passive which does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Clark County, Nevada. These Terms, our Privacy Policy, and other Policies are governed by the laws of the State of Nevada and of the United States of America, and without regard to conflicts of law principles. In the event of a conflict between these Terms and a foreign language version of the Terms, the English language version of these Terms shall govern. All disputes, claims and causes of action (and related proceedings) will be communicated in English.
25. Compliance. You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and regulations regarding use of the Service. The Services are designed and targeted to Users who reside in the United States. We make no representation that the Services are operated in accordance with the laws or regulations of, or governed by, other nations. By accessing the Services you certify that you meet the age and other eligibility requirements for use of the Services. Those who access or use the Services do so at their own volition and are entirely responsible for compliance with applicable law. Further, you agree to comply with all laws, restrictions and regulations relating to the export of items, Content, and the Services. For purposes of the U.S. Export Administration Act (“Export Laws”), you state you are: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the Office of Foreign Assets Control (“OFAC”)) comprehensively embargoed countries of Iran, Syria, Cuba, North Korea and Sudan and certain Specially Designated Nationals listed by OFAC as updated from time to time and (b) not otherwise prohibited under the Export Laws from receiving the Services and Content.
26. Feedback. We value your comments and opinions. If you have questions, comments or a complaint about these Terms, you may send a written notice to us at: help@benhogangolf.com or 16 Sunset Way #110, Henderson, NV 89014.