1. Acceptance of Agreement
This is an agreement between Expressive Athletics,LLC., a California company (the “Company”), the owner and operator of the websites located at www.baitmerchant.com (collectively, the “Site”), and you, a user of the Site. By using the Site, you agree to this agreement. If you choose to not agree with this agreement, you must not use the Site.
The Site is offered and available to users who are at least 18-years old and have reached the age of majority where they live. By using this Site, you state that you are (1) at least 18-years old, (2) have reached the age of majority where you live, and (3) have the legal capacity to agree to this agreement and to perform the acts required of you by this agreement. If you do not meet these requirements, you must not access or use the Site.
2. Changes to Agreement
2.1 Right to Change Agreement
The Company may, in its sole discretion, change this agreement (“Updated Agreement”) on one or more occasions.
2.2 Notice of Updated Agreement
Unless the Company makes a change for legal or administrative reasons, the Company will provide reasonable advance notice before the Updated Agreement becomes effective. You acknowledge that the Company may notify you of the Updated Agreement by posting it on the Site.
2.3 Acceptance of Updated Agreement
Your use of the Site after the effective date of the Updated Agreement constitutes your agreement to the Updated Agreement. You should review this agreement and any Updated Agreement before using the Site.
2.4 Effective Date of Updated Agreement
The Updated Agreement will be effective as of the time of posting, or any later date as may be stated in the Updated Agreement, and will apply to your use of the Site from that point forward.
3. Nature of Site
The Site provides general information about the Company and the products and services that it offers.
4. Use of Site
During this agreement, the Company hereby grants you a nonexclusive, nonsublicensable, nontransferable license to access the Site and its services for your personal and noncommercial use in accordance with this agreement.
4.2 Intellectual Property Rights
The Site and its entire contents, features, and functionality (including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of it) are owned by the Company, its licensors, or other providers of the material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. The Company reserves all rights not expressly granted in and to the Site. You will not engage in the use, copying, or distribution of any part of the Site or the services other than as expressly permitted.
The Expressive Athletics and Bait Merchant name and logo are the Company’s trademarks, and must not be copied, imitated, or used, in whole or in part, without the Company’s advance written permission. In addition, all page headers, custom graphics, button icons, and scripts are the Company’s service marks, trademarks, and trade dress, and must not be copied, imitated, or used, in whole or in part, without the Company’s advance written permission.
4.4 User Conduct
You will not engage in any of the following prohibited activities:
(a) copying, distributing, or disclosing any part of the Site in any medium, including by any automated or non-automated “scraping;”
(b) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Site;
(c) transmitting spam, chain letters, or other unsolicited email;
(d) use the Site to collect email addresses for sending unsolicited emails;
(e) attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site;
(f) taking any action that imposes, or may impose at the Company’s sole discretion an unreasonable or disproportionately large load on the Site infrastructure;
(g) uploading invalid data, viruses, worms, or other software agents through the Site;
(h) collecting or harvesting any personally identifiable information, including account names, from the Site;
(i) using the Site for any commercial solicitation purposes;
(j) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
(k) interfering with the proper working of the Site;
(l) accessing any content on the Site through any technology or means other than those provided or authorized by the Site;
(m) bypassing any security measures the Company may use to prevent or restrict access to the Site, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content in it;
(n) decipher, decompile, disassemble, reverse engineer, or otherwise try to derive any source code or underlying ideas or algorithms of any aspect, feature, or part of the services; or
(o) modify, translate, or otherwise create derivative works of any part of the Site or services.
5. Your Account (applies to baitmerchant.com only)
5.1 Account Creation
You must complete the registration process by providing the Company with accurate information as prompted by the applicable registration form. You also will choose a password and a username.
5.2 Responsibility for Account
You are responsible for keeping the confidentiality of your password and account. Further, you are responsible for all activities that occur under your account. You will promptly notify the Company of any unauthorized use of your account or any other breach of security.
5.3 Liability for Account Misuse
The Company will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You could be held liable for losses incurred by the Company or another party due to someone else using your account or password.
5.4 Use of Other Accounts
You will not use anyone else’s account at any time.
6. Account Security
The Company cares about the integrity and security of your personal information. But the Company cannot guarantee that unauthorized third parties will never be able to defeat the Site’s security measures or use any personal information you provide to the Company for improper purposes. You acknowledge that you provide your personal information at your own risk.
The Site may contain links to third-party websites or resources. You acknowledge that the Company is not responsible or liable for: (1) the availability or accuracy of those websites or resources; or (2) the content, products, or services on or available from those websites or resources. Links to third-party websites or resources do not imply any endorsement by the Company of those websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
8. Third-Party Content
Through the Site, you may have the ability to access or use content provided by third parties. The Company cannot guarantee that this third-party content will be free of material you may find objectionable or otherwise. The Company will not be liable for your access or use of any third-party content.
10. Copyright Policy
10.1 The Company respects the intellectual property rights of others and expects users of the Site to do the same. The Company will respond to notices of alleged copyright infringement that comply with law and are properly provided to the Company. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide the Company’s copyright agent with the following information in accordance with the Digital Millennium Copyright Act (DMCA):
(a) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
(b) identification of the copyrighted work claimed to have been infringed;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material;
(d) your contact information, including your address, telephone number, and an email address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
10.2 It is the Company’s policy to terminate the user accounts of repeat infringers.
11.1 Termination on Notice
Either party may terminate this agreement at any time by notifying the other party.
11.2 Termination by the Company
The Company may terminate or suspend your access to or ability to use the Site immediately, without advance notice or liability, for any reason or no reason.
11.3 Effect of Termination
On termination of your access to or ability to use the Site, your right to use or access the Site will immediately end. Termination of your access to and use of the Site will not relieve you of any obligations arising or accruing before termination or limit any liability that you otherwise may have to the Company or any third party.
11.4 Survival of Provisions
This agreement’s provisions that by their nature should survive termination will survive termination, including ownership provisions, warranty disclaimers, and limitations of liability.
12. Changes to the Site; Availability
12.1 Although the Company may update the content on the Site on one or more occasions, the content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time, and the Company is not required to update that material. If you believe you have found errors or omissions on the Site, you can bring them to the Company’s attention by emailing the Company at firstname.lastname@example.org.
12.2 While the Company will try to make sure that the Site is always available, the Company does not guarantee continuous, uninterrupted, or secure access to the Site. Many factors or circumstances outside of the Company’s control may interfere with or adversely affect its operation of the Site.
13. Reliance on Information Posted
13.1 The Company makes the information presented on or through the Site available for general information purposes only. The Company is not making any warranty about the accuracy or usefulness of this information. Any reliance you place on this information is strictly at your own risk. The Company will not be liable for any reliance placed on these materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
13.2 The Site may include content provided by third parties, including materials provided by other users, third-party licensors, syndicators, or aggregators. All statements or opinions expressed in these materials, and all responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person providing these materials. These materials do not reflect the Company’s opinion. The Company will not be liable to you or any other person for the content or accuracy of any materials provided by any other person or entity.
14. Compliance with Law
The Company is located in the state of California in the United States. The Company is not making any statement that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site might not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for complying with all local laws.
16. Limit on Liability; Release
16.1 The Company will not be liable to you for any of the following:
(a) Errors, mistakes, or inaccuracies of content;
(b) Property damage resulting from your access to and use of the Site;
(c) Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
(d) Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to your account, transmissions, or data;
(e) Interruption or cessation of transmission to or from the Site;
(f) Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Site by any person or that might infect your computer or affect your access to or use of the Site or your other services, hardware, or software;
(g) Incompatibility between the Site and your other services, hardware, or software;
(h) Delays or failures you might experience in starting, conducting, or completing any transmissions to or transactions with the Site; or
(i) Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Site.
16.2 You hereby release the Company from all liability arising out of the conduct of other users or persons, including disputes between you and one or more other users or persons.
17. Exclusion of Damages; Exclusive Remedy
18. Scope of Disclaimers, Exclusions, and Limits
The disclaimers, exclusions, and limits stated in sections 15, 16, and 17 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive you of any mandatory protections provided to you by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the exclusion of some damages, or other matters, one or more of the disclaimers, exclusions, or limits might not apply to you.
19.1 In General
(a) “Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
(b) A loss is “caused by”an event if the loss would not have happened without the event, even if the event is not a proximate cause of the loss.
19.3 The Company’s Duty to Notify You
The Company will use reasonable efforts to notify you before the 30th day after the Company knows or should reasonably have known of a claim for a loss that you might be compelled to pay. But the Company’s failure to give you timely notice does not end your obligation, except if that failure prejudices your ability to defend the claim or mitigate losses.
19.4 Legal Defense of a Claim
The Company has control over defending a claim for a loss (including settling it), unless the Company directs you to control the defense. If the Company directs you to control the defense, you will not settle any litigation without the Company’s written consent if the settlement (1) imposes a penalty or limitation on the Company, (2) admits the Company’s fault, or (3) does not fully release the Company from liability. You and the Company will cooperate with each other in good faith on a claim.
19.5 No Exclusivity
The Company’s rights under this section 19 do not affect other rights the Company might have.
20. Dispute Resolution
20.1 Litigation Election
Each party will allow the other a reasonable opportunity to comply before it claims that the other has not met the duties under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of or relating to the Site or this agreement.
Unless the parties agree otherwise, the arbitration will take place in Los Angeles County, California.
Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration.
The award rendered by the arbitrator must include costs of arbitration, reasonable legal fees, and reasonable costs for expert and other witnesses, and any judgement on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
20.5 Injunctive Relief
Nothing in this section 20 will prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Site.
20.6 Jurisdiction and Venue
(a) If a party brings any proceeding authorized under section 20.1, that party will bring that proceeding only in the United States District Court for the Central District of California or in any state or local court located in Los Angeles County, California, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any proceeding.
(b) Each party hereby waives any claim that any proceeding brought in accordance with section 20.6(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
20.7 Recovery of Expenses
(a) In any proceedings between the parties arising out of or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.
(b) For purposes of section 20.7(a), “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
20.8 Jury Trial Waiver
20.9 Class Action Waiver
20.10 Limitation on Time to Bring Claims
21.1 Entire Agreement
This agreement constitutes the entire agreement between you and the Company about your access to and use of the Site. It supersedes all earlier or contemporaneous agreements between you and the Company about access to the Site. A printed version of this agreement will be admissible in any proceedings arising out of or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and kept in printed form.
21.2 Copy of this Agreement
You may—and the Company recommends that you—print this agreement on your printer or save it to your computer. If you have trouble printing a copy, please contact the Company at email@example.com and the Company will email you a copy.
21.3 Assignment and Delegation
The Company may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without the Company’s advanced written consent. Any attempted assignment of rights or delegation of performance in breach of this section 21.3 is void.
21.4 No Waivers
The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
(a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
(b) that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
(c) that if an unenforceable provision is modified or disregarded in accordance with this section 21.5, then the rest of the agreement will remain in effect as written; and
(d) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
(a) Sending Notice to the Company
You may send notice to the Company by email at firstname.lastname@example.org unless a specific email address is set out for giving notice. The Company will consider an email notice received by it only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Site. Please check the Site for the most current information for sending notice to the Company.
(b) Sending Notice to You—Electronic Notice
21.7 Governing Law
The laws of the state of California—without giving effect to its conflicts of law principles—govern all matters arising out of or relating to this agreement or the Site, including the validity, interpretation, construction, performance, and enforcement of this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a “sale of goods.”
21.8 Force Majeure
The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond the Company’s reasonable control delays or continues to delay the Company’s performance, including:
(a) Acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
(b) War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
(c) Fiber cuts;
(d) Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
(e) Failure of the telecommunications or information services infrastructure; and
(f) Hacking, SPAM, or any failure of a computer, server, network, or software.
21.9 No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
21.10 Relationship of the Parties
This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
21.11 Successors and Assigns
This agreement inures to the benefit of, and is binding on, the parties and their respective successors and assigns. This section 21.11 does not address, directly or indirectly, whether a party may assign rights or delegate obligations under this agreement. Section 21.3 addresses these matters.
21.12 Permission to Send Emails to You
21.13 Electronic Communications Not Private
The Company does not provide facilities for sending or receiving confidential electronic communications. You should consider all messages sent to the Company or from the Company as open communications readily accessible to the public. You should not use the Site to send or receive messages you only intend the sender and named recipients to read. Users or operators of the Site may read all messages you send to the Site regardless of whether they are intended recipients.
21.14 Electronic Signatures
The Company encourages you to give feedback about the Company or the Site. But the Company will not treat as confidential any suggestion or idea you give, and nothing in this agreement will restrict the Company’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
21.16 English language
The Company has drafted this agreement in the English language. The Company assumes that you can read and understand the English language. The Company is not liable to you or any other person for any costs or expenses incurred to translate this agreement into another language. The English language version controls over any translated version.
21.17 Contact Information
If you have any questions about this agreement, the Site, or the service, you may contact the Company at email@example.com.
In this agreement, the following usages apply:
(a) Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor’s sole discretion.
(b) References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
(c) References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to 6.1, 6.1(a), etc.
(d) References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
(e) “A or B” means “A or B or both.” “A, B, or C” means “one or more of A, B, and C.” The same construction applies to longer strings.
(f) “Including” means “including, but not limited to.”