Acceptance of Terms
This is a legal agreement (“Agreement”) between you, the user, together with any organization, company or other business entity you are representing, if any (collectively, the “Member”) and Varsity Brands, Inc., (together with its, affiliates, partners, subsidiaries and employees, “Varsity”). BY CHECKING THE BOX ON THE SIGN UP PAGE, OR BY REGISTERING WITH THE SITE, MEMBER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If Member does not agree to the terms of this Agreement, do not check the box and do not use or access http://www.VarsityBrands.com (“VarsityBrands.com”), as well as Varsity’s social media websites, mobile websites, applications and other content (collectively, the “Service”).
The Service is offered to Member conditioned upon Member’s acceptance without modification of this Agreement. Member acknowledges that, from time to time, it may be necessary for Varsity to update or revise certain provisions of the Agreement. By joining VarsityBrands.com and/or using the Service and accepting this Agreement, Member agrees that Varsity may change the terms of the Agreement in its sole discretion without notice to Member. If Member does not agree to the changes proposed by Varsity, or to any terms in this Agreement, Member’s sole and exclusive remedy is to cancel Member’s Varsity.com account (“Member’s Account”). Notwithstanding the foregoing, Varsity reserves the right to cancel, suspend or refuse access to the Service to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement.
General Use of the Service
In order for Member to participate in the Service, Varsity will require Member to provide specific information about Member and/or Member’s organization or business (if applicable). If Member chooses to participate and build a Member Web Site, Member agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing Member’s affiliation with any person or entity. Member shall be responsible for maintaining the confidentiality of Member’s Account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. Member shall be responsible for all actions by such users, including without limitation former employees and former partners, and shall indemnify Varsity for such actions.
Member Account Limitations
Member hereby acknowledges that Varsity may, from time to time, establish general practices and limits concerning the use of the Service, including without limitation, (a) maximum limits on storage space, (b) the maximum number of web sites per Member Account, and (c) maximum limits on the number of pages within each Member Web Site. Any of the foregoing limits will be consistent with the Service for which Member registered. Member agrees that Varsity has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Service. Member further acknowledges and agrees that Varsity reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Content Submitted to VarsityBrands.com
The VarsityBrands.com web Site includes a number of venues such as Member Web sites and web pages, Discussion Boards and/or other message or communication facilities designed to enable Members to disseminate and exchange thoughts and opinions to and with other users or the public. Although Varsity firmly believes in the value of free and open dissemination and exchanges, it is under no obligation, but does reserve the right, to monitor, pre-screen, or otherwise censor Member’s thoughts and opinions. Therefore, Varsity cannot be responsible for the appropriateness, accuracy, sufficiency, correctness, veracity, completeness, or timeliness of such thoughts and opinions. Member acknowledges that Member should always use caution when posting any personally identifying information about Member or Member’s squad members or employees on the VarsityBrands.com web Site, the Member Web Site, or any other user web sites.
Member’s right to use the Service is personal to Member and Member’s organization, company and its employees (if applicable). Member, and not Varsity, is entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Member Content”) posted via the Service. Member, and not Varsity, is also responsible for compliance with all laws, regulations and ordinances connected with all aspects of Member’s use of the Service. Member shall not use the Service for any illegal purpose in violation of any local, state, federal or international law. Member must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, “Information and Actions”) in connection with Member’s use of the Service. If the Service does not provide adequate facility or features for Member to provide such Information and Actions, then Member shall not use the Service.
Varsity does not control the Member Content posted via the Service and as such, does not guarantee the accuracy, integrity or quality of such content. Varsity reserves the right, but is not obligated to review the Member Content posted via the Service and to refuse or remove any such materials in its sole discretion, without notice at any time. Varsity also reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, from the Member Content in Varsity’s sole discretion. With respect to the content on the Member Web Site, Member agrees not to:
a) post, upload or otherwise transmit any content which is misleading to others or impersonate any person or entity or falsely state or otherwise misrepresent Member’s affiliation with a person or entity to others, including, but not limited to, consumers;
b) post, upload or otherwise transmit any content that is inappropriate, harmful to minors, threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
c) post, upload or otherwise transmit any content that Member does not have a right to post and transmit under any law or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
d) post, upload or otherwise transmit any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party;
e) post, upload or otherwise transmit any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment and/or attempt to access the accounts of others, or attempt to penetrate security measures of VarsityBrands.com, its vendors or suppliers or other entities’ systems (“hacking”), whether or not the intrusion results in corruption or loss of data;
f) post, upload or otherwise transmit any materials that impose an unreasonable or disproportionately large load on VarsityBrands.com’s infrastructure that exceed the limits provided by the Service for which Member registered;
g) post, upload or transmit any unsolicited or unauthorized advertising, promotional materials, “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
h) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
i) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities Exchange Commission, any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
j) forge any headers or other manipulation of identifiers in order to disguise the origin of any content transmitted through the Service;
k) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals;
l) sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, liquor, tobacco products and any other products or services that (i) Member cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the Member Web Site could cause Varsity to violate any law, statute or regulation.
m) post or disclose any personal or private information or images about children or any third party without their consent (or a parent’s consent in the case of a minor). Varsity may terminate Member’s Account if Varsity determines that such content is inappropriate for the community at large but does not otherwise violate the terms of this Agreement.
As part of the Service, VarsityBrands.com provides its Members with a venue and an opportunity to participate in discussion boards (“Discussion Boards”). Member shall abide by all terms and conditions of VarsityBrands.com’s Discussion Board Policy, which is hereby incorporated by reference, in utilizing the Discussion Boards.
Third Party Content
For Member’s convenience, the Service, which includes the VarsityBrands.com web Site, contains products, services, content and information from third party providers (which includes advertisers and affiliates) and/or links to their web sites (“Third Party Content”). Such Third Party Content is not under the control of Varsity and Varsity is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. Varsity is under no obligation, but does reserve the right to pre-screen Third Part Content available on the Service and does not assume any responsibility or liability for the content provided by others. Varsity is providing such Third Party Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by Varsity of such content or the affiliate or advertiser. Member may be subject to additional and/or different terms, conditions, and privacy policies when using third party products, services, content, software, or sites. Varsity does reserve the right to remove content that, in Varsity’s judgment, does not meet its standards, but Varsity is not responsible for any failure or delay in removing such material.
Varsity is not and will not be responsible for (i) the terms and conditions of any transaction between Member and any third party, (ii) any insufficiency of or problems with any such third party’s background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that Member has a dispute with any such third party, Member releases Varsity (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
DISCLAIMER OF WARRANTIES
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT:
(A) MEMBER’S USE OF THE SERVICE IS AT MEMBER’S SOLE RISK. VARSITY AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, THE VARSITYBRANDS.COM WEB SITE AND THE MEMBER WEB SITE “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(B) VARSITY AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET MEMBER’S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY MEMBER THROUGH THE SERVICE WILL MEET MEMBER’S EXPECTATIONS.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, THE VARSITYBRANDS.COM WEB SITE OR MEMBER WEB SITES IS DONE AT MEMBER’S OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
LIMITATION OF LIABILITY
IN NO EVENT SHALL VARSITY AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF VARSITY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICE, (B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO MEMBER. IN NO EVENT SHALL VARSITY’S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO VARSITY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS LESS. Without limiting the foregoing, neither Varsity nor its suppliers is responsible for any of Member’s data residing on the Service or Varsity’s suppliers’ hardware. Member is responsible for backing-up Member’s data and information that may reside on the Service or Varsity’s suppliers’ hardware, whether or not such information is produced through the use of the Service. It is Member’s responsibility to take the necessary steps to ensure that Member’s primary means of business is maintained (if applicable).
Proprietary Rights to Member Content
Varsity does not claim ownership of the Member Content that Member provides to VarsityBrands.com and/or places on the Member Web Site or Service. However, Member grants Varsity a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Member Content on and through the Service and in Varsity’s promotional or advertising materials (only for the limited purpose of promoting the Service), and (ii) sublicense to third parties such Member Content to the extent necessary for the creation and maintenance of, in part or in whole, such web sites. No compensation will be paid or due Member with respect to Varsity’s or its sublicensee’s use of the materials as licensed above. By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any Member Web Site, Member warrants and represents that Member owns or otherwise controls the rights necessary to do so and to grant Varsity the license set forth above and, Member will defend and indemnify Varsity and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.
VarsityBrands.com Proprietary Rights/Software Licenses
Member acknowledges and hereby agrees that the Service and any software used in connection with the Service (the “Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Member further acknowledges and agrees that content contained in sponsor advertisements or information presented to Member through the Service, advertisers and/or Discussion Boards is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws.
Varsity provides Member with a non-exclusive, non-transferable, limited license to use the Software, which Member agrees to use in accordance with this Agreement. Member may not sub-license or charge others to use or access the Software without first obtaining written permission from Varsity. The Software is owned by Varsity and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification, creation of derivative works from or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. The Software, its structure, sequence and organization and source code are considered trade secrets of Varsity and its suppliers and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
Member agrees to indemnify and hold Varsity and its suppliers, affiliates, partners, subsidiaries and employees (collectively, the “Indemnified Parties”) harmless from any and all claims and demands, losses, liability costs and expenses (including, but not limited to, reasonable attorneys’ fees), incurred by an Indemnified Party arising out of or related to (i) Member’s breach of this Agreement; (ii) any information (including but not limited to Member Data and Member’s publicly posted information) submitted, posted, or otherwise provided by Member at the Member Web Site and/or to VarsityBrands.com and/or its affiliates; (iii) any dispute or litigation between an Indemnified Party and a third party caused by Member’s actions; and (iv) Member’s negligence or violation or alleged violations of any rights of another. These obligations will survive any termination of Member’s relationship with Varsity or Member’s use of the Service. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of Varsity and/or its suppliers, affiliates, partners, subsidiaries and employees.
Copyright and Trademark Notices
All materials of the Service and the Software (as well as the organization and layout of the VarsityBrands.com web site) are owned and copyrighted or licensed by Varsity, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the Service, which includes the VarsityBrands.com web site and/or the Software, is permitted without the written permission of Varsity. Any rights not expressly granted herein are reserved. VarsityBrands.com, the VarsityBrands.com logo, are trademarks of Varsity (the “VarsityBrands.com Marks”). Member agrees not to display or use the VarsityBrands.com Marks in any manner whatsoever without Varsity’s prior permission.
Varsity respects the intellectual property of others. It is our policy to respond expeditiously to legitimate claims of copyright and other intellectual property infringement. We will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, we may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We will terminate access for subscribers and account holders who are repeat infringers.
Notifying Varsity of Copyright Infringement: To provide us with notice of an infringement, you must provide a written communication to the attention of “Varsity DMCA Notification Dept.” at [email protected] that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright.
Providing Varsity with Counter-Notification: If we remove or disable access to content in response to an infringement notice, we will make reasonable attempts to contact the owner or administrator of the affected content. If your material has been removed and you feel that your material does not constitute infringement, you may provide Varsity with a counter notification by written communication to the attention of “DMCA Counter Notification Dept.” at [email protected] that sets forth all of the necessary information required by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.
Modification of the Service
Varsity reserves the right, at its sole discretion, to, at any time, modify, or discontinue the Service, temporarily or permanently, (or any part thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the Service, with or without notice. Member agrees that Varsity shall not be liable to Member or to any third party for any modification, suspension or discontinuance of the Service. Member further agrees that Varsity shall have the right to remove any element from the Member Web Site or the Service, with or without notice to Member, at any time at Varsity’s sole discretion, if Varsity discontinues offering the element for any reason. If Member does not agree to any such modifications, Member’s sole and exclusive remedy is to cancel Member’s Account.
Termination/Cancellation of Member Account
Member further agrees that Varsity, in its sole discretion, may terminate Member’s Web Site, Member’s Account or Member’s use of the Service for any reason, including, without limitation, (i) if Member breaches this Agreement, (ii) if Varsity is unable to verify or authenticate any information that Member provides to Varsity, (iii) if Varsity believes that Member has violated or acted inconsistently with the spirit of this Agreement, or (iv) for lack of use if Member has registered for a free Service. Varsity may also terminate Member’s Web Site and/or Member’s Account if Varsity determines, in Varsity’s sole discretion, to discontinue offering the Service. If Varsity terminates Member’s Account pursuant to (i), (ii) or (iii) above, Member will forfeit all credits, pre-paid fees, and any other amounts accruing to Member, if any, and VarsityBrands.com shall not be required to refund, redeem, or pay amounts to Member upon such termination.
Upon termination of Member’s Account for any reason, Member shall remain liable for and Varsity reserves the right to (a) delete any Member Content, listings, messages or other information in connection with Member’s account; (b) prohibit Member’s access to Member’s Account, including without limitation by deactivating Member’s password; and (c) refuse Member future access to the Service. In no event shall Varsity be required to refund, redeem, or pay amounts to Member upon termination of Service.
Statements, notices and other communications to Member may be made by mail, email, postings within Member’s account or other reasonable means. Varsity may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the VarsityBrands.com web Site. Member should refer to the Member Support page of the VarsityBrands.com web Site for information on how to contact and/or provide notice to Varsity.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Varsity’s failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Member shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of Varsity, and any such attempted assignment shall be void. Varsity shall have the right to freely assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent or notice of Member. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between Varsity and Member with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.
Any and all disputes, claims or causes of action arising out of, under, or in connection with this Agreement (including without limitation, its validity, interpretation, performance, or breach) will be adjudicated exclusively in the state or federal courts situated in (or having jurisdiction over) Shelby County, Tennessee. You expressly consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such disputes, claims or causes of action. You expressly waive any claim of forum non conveniens. You expressly agree that any and all such disputes, claims or causes of action shall be resolved individually, without resort to any form of class action. You agree to reimburse Varsity for its reasonable legal and professional fees and expenses of instituting or defending a lawsuit against (or by) you. This Agreement, and its validity and effect, will be interpreted under and governed by the substantive laws of Tennessee, without giving effect to any principles of conflicts of law of any jurisdiction.
The services hereunder are offered by Varsity Brands, Inc., located at 6745 Lenox Center Court, Suite 300, Memphis, TN 38115.
If you happen to observe any violations of this Agreement regarding VarsityBrands.com Squad Pages or Message Board conduct, please report such violations to [email protected]
MEMBER ACKNOWLEDGES THAT MEMBER HAS READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT MEMBER AGREES TO ALL ITS TERMS AND CONDITIONS. MEMBER HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.