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Terms and Conditions

Terms and Conditions

These Terms of Service (this ‘Agreement’), constitute a legal agreement between 360 Sports, Inc. (‘360 Sports’) and you. This Agreement governs your use of the Software and Service (as defined below). By clicking ‘I Accept,’ you agree to all terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other organization, you hereby warrant and represent that you are authorized to enter into this Agreement on behalf of such company or other organization.

Last Updated: June 1, 2019

Definitions

For purposes of this Agreement, the following terms have the following meanings:

  • ‘Commissions’ means monetary payments made to you in relation to sales by Customers from Merchants.
  • ‘Customer’ means a user of the Website that is referred to a Merchant via the Service and/or interacts with Merchants by purchasing goods and/or services.
  • ‘Merchant’ means a party that supplies goods and/or service to Customers and which has an affiliate program or other means of communicating to 360 Sports the associated Commissions.
  • ‘Service’ means the provision to you of the Software and access to Merchants.
  • ‘Software’ means the 360 Sports software that facilitates the automated and online referral by you of a Customer to a Merchant and records the sales activity between such referral and Merchant.

The above language is intended for illustration purposes and should not be interpreted to restrict the scope of destinations that 360 Sports deems monetizable (e.g. Merchants) nor the forms of monetizing (e.g. Commissions for sales by Customers).

Registration

In order to use the Software and Service, you must complete the registration process at 360sportsapparel.com. 360 Sports will evaluate all registration applications for suitability to receive access to the Software and Service in its sole discretion and will inform you via email if your registration application has been approved. If your registration application is approved, 360 Sports will provide you with a unique user ID and a piece of JavaScript code that you will add to the Website in order to enable the Software on the Website. For purposes of this Agreement, the term ‘Website’ means the website or websites upon which you install the 360 Sports code. The 360 Sports software may only be used on websites for which you have the authority to modify. The use of 360 Sports in conjunction with browser toolbars, proxies or other intermediate software to modify websites or affiliate clicks you do not control is specifically prohibited. 360 Sports will deny or cancel service for any site at its discretion.

License

Subject to the terms and conditions of this Agreement, 360 Sports grants you a non-exclusive, non-transferable, non-sub-licensable license to use the Software and Service on the Website during the term of this Agreement. You will not and will not permit any third party to (i) reverse engineer, decompile or otherwise attempt to discover the source code of the Software, (ii) interfere with the operation of the Software or Service; or (iii) use the Software or Service in any way other than as expressly set forth herein. 360 Sports retains all right, title and interest in and to the Software and Service, all improvements and derivative works thereof, together with all Intellectual Property Rights embodied therein. You will have no rights with respect to the foregoing except for the limited license expressly set forth herein.

Responsibility for the Website

You will be solely responsible for all matters related to the content, operation and maintenance of the Website, including, but not limited to: (i) creating and posting Merchant descriptions and links on the Website and linking to Merchant websites; (ii) the accuracy and appropriateness of all materials posted on the Website (including, but not limited to, all information regarding Merchants and Merchants’ products and/or services); (iii) ensuring that all materials posted on the Website do not infringe or misappropriate any third party intellectual property rights; and (iv) ensuring that all materials posted on the Website are not defamatory or otherwise illegal. You represent, warrant and covenant that you shall comply with applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including without limitation laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003),, as well as any applicable Merchant terms and conditions and policies, in each case to the extent applicable to your operation of the Website and use of the Service and Software, including, without limitation, those regarding the disclosure of a material relationship inherent in the links on the Website.

Additional Domain Name Requests

If you wish to use the 360 Sports products for any additional website(s), then you may request that such website(s) are added to your account by notifying 360 Sports support at support@360 Sports.com. 360 Sports may approve or reject each domain request at its discretion. If 360 Sports decides to reject a domain request, it is not obliged to provide you with its reasons for doing so. If 360 Sports approves a domain request, it will notify you by email, and you may begin using the 360 Sports products in relation to such additional website(s). Should the additional domains be added without 360 Sports approval, 360 Sports can at its discretion reverse all commissions earned.

Merchants

You acknowledge and agree that (i) 360 Sports uses its sole discretion in determining which Merchants the Website will be affiliated with, as well as the number of Merchants (if any) the Website will be affiliated with; (ii) 360 Sports may (through the Software and with your permission) re-write links on the Website from one Merchant to another in order to obtain the best value for you; (iii) Merchants set their Commission structures and may change their Commission structures (generally or solely with respect to you) or terminate their involvement in the Service (generally or solely with respect to you) at any time and 360 Sports will have no control over or liability in connection with any Merchant’s decision to do so; and (iv) Merchants may at any time send 360 Sports notice requesting that you remove links or references to Merchants’ brands, products, services or trademarks and 360 Sports will communicate this notice to you.

Commissions and Payment

360 Sports will be the ‘publisher of record’ for all Merchant affiliate programs, and will collect all commissions received from Merchants on account of referrals from the Website. 360 Sports will pay you a Commission equal to (i) a percentage of revenues (the “Applicable Percentage”) that 360 Sports receives from Merchants on account of referrals from the Website (“Merchant Revenue”) minus (ii) any Chargebacks (as defined below) and any other commission cancellations, reversals or deductions administered or by determination of 360 Sports with respect to any referrals from the Website (collectively, “Deductions”), provided that you use 360 Sports tracking. The Applicable Percentage may be revised by 360 Sports from time to time without notice. Payment will be issued to you at the end of each month for all Commissions earned by you that correspond to Merchant Revenue that 360 Sports has received up to that point. There is a monthly minimum of $10.00 for payout. We will collect all relevant details for tax purposes as necessary and specified by the tax code. A Merchant may determine, in its sole discretion, that any sale was not a bona fide transaction, whether goods are returned by the Customer or otherwise (a ‘Chargeback’), and may make a Chargeback claim requesting certain Commissions be canceled or reversed to reflect the fact that the Merchant’s business never benefited from the transaction. Chargebacks are communicated to 360 Sports as they occur. Merchant Revenue is typically paid by Merchants, and Chargebacks are typically determined, within sixty (60) days but can fall outside of this, from the applicable sale; however, you acknowledge and agree that 360 Sports is not required to pay any Commission to you until 360 Sports has actually received the corresponding Merchant Revenue, and that you will be solely responsible and pay 360 Sports for (and 360 Sports may deduct from any Commission payments to you) the full amount of any Chargebacks and other Deductions, regardless of when such Chargeback or other Deduction is claimed by the Merchant. Commissions earned are solely the result of Merchant’s evaluation and approval of referrals from the Website and 360 Sports has no say nor visibility into how these referral transactions are evaluated and approved, nor why a referral transaction was disallowed or not paid on. You agree that different Merchants use different Merchant Revenue calculations based on fixed amounts per sale, CPA “cost per action”, CPC “cost per click”, bounties, or other percentage based methodologies (without limitation). You are encouraged to review all Merchant affiliate program terms and conditions. Any and all requests and appeals for payment or rationale behind click- affiliation are NOT the responsibility of 360 Sports, nor does 360 Sports have any duty to help you solve the issue of affiliate payments. While 360 Sports offers to cover the cost of some payment types, you are solely responsible for any fees charged by your bank or other provider for receiving payments from 360 Sports. Further, should payments be returned or rejected, 360 Sports will assess fees directly or deduct against your account balance.

Indemnity

You will indemnify, defend and hold harmless 360 Sports and its officers, directors, shareholders, employees and agents from and against any and all liabilities, losses, damages and expenses (including reasonable attorneys’ fees and disbursements) resulting from or based upon (i) any claim that the Website infringes or misappropriates any third party intellectual property rights; (ii) your breach of any representations or warranties made by you in this Agreement or of any other obligation of yours set forth in this Agreement, or (iii) any claim by any Customer or other third party arising from your use of the Service or Software, unless due to 360 Sports’s negligence or willful misconduct. 360 Sports will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in these terms of service; (c) your use of any Content, whether or not such use is authorized by or violates these terms of service, or applicable law; (d) your violation of any term or condition of these Terms of Service; or (e) your or your employees’ negligence or willful misconduct.

Privacy

360 Sports will protect all information collected from your use of the Software and the Service in accordance with the 360 Sports Privacy Policy. You shall disclose to users of the Website and Customers your privacy practices and policies in accordance with all applicable laws and regulations, including, without limitation, the Federal Trade Commission guidelines regarding disclosure of native advertising, and you acknowledge and agree that as between you and 360 Sports, it is solely your responsibility to do so. You shall disclose on your Website accurately and adequately, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties may serve content and advertisements, collect information directly from visitors, and place or recognize cookies on visitors’ browsers. You hereby grant to 360 Sports a worldwide, non-exclusive right and license to collect, use and disclose non-personally identifiable Usage Data (as defined in the Privacy Policy) and to allow our third party partners to do the same.

Data Protection and Privacy Obligations

In order to participate in the 360 Sports network and use 360 Sports’s Software and Service, You collect, process, and share personal data with 360 Sports for the permitted purposes described in this Agreement. You are the controller of the personal data You process, disclose, and/or make available to 360 Sports. 360 Sports may, at its sole discretion, collect and use personal data for the permitted purposes described in this agreement. Under no circumstances will the parties process personal data as joint controllers. You will be responsible for fulfilling all obligations that apply to You as a controller under applicable data protection law including, but not limited to, the General Data Protection Regulation. 360 Sports and You shall each maintain independent, publicly accessible privacy policies on its website that satisfies the transparency disclosure requirements of Applicable Data Protection Law including, but not limited to, the General Data Protection Regulation. 360 Sports and You shall each implement appropriate and reasonable technical and organizational security measures to protect personal data from accidental or unlawful destruction and/or loss, alteration, or unauthorized disclosure of, or access to, the personal data by third parties. You are obligated to provide data subjects with appropriate notice of cookie functionality and placement upon all digital properties where You and/or 360 Sports will serve a cookie. You must obtain the necessary and required consent of data subjects on behalf of 360 Sports, as required by applicable data protection law including, but not limited to, the General Data Protection Regulation. You will provide data subjects with the ability to withdraw consent at any time and will provide 360 Sports with any correspondence, inquiries, or complaints from data subjects or supervisory authorities related to the use of data subjects’ personal data for the permitted purposes described in this agreement. 360 Sports may provide You with tools or mechanisms to facilitate You with obtaining consent from data subjects. Additional Terms of Use may apply to the use of consent tools or mechanisms and supersede the terms laid forth in this agreement.

Disclaimer of Warranties

THE SOFTWARE AND THE SERVICE ARE PROVIDED ‘AS IS.’ 360 SPORTS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE SOFTWARE, THE SERVICE, THE MERCHANTS ACCESSIBLE THROUGH THE SERVICE, THE OPERATION OF THE SOFTWARE OR THE SERVICE BEING UNINTERRUPTED OR ERROR-FREE, OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. 360 SPORTS EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT 360 SPORTS MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY SUCH WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED BY APPLICABLE LAW.

Limitation of Liability

IN NO EVENT WILL 360 SPORTS BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY CUSTOMER) FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. IN NO EVENT WILL 360 SPORTS’S LIABILITY FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE COMMISSIONS PAID TO YOU BY 360 SPORTS UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS.

Term and Termination

This Agreement will commence upon its execution and will continue until terminated by either you or 360 Sports upon at least five (5) business days\ prior written notice to the other party. In the event of termination of this Agreement for any reason other than your breach of this Agreement, 360 Sports will pay outstanding Commissions due to you in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of, and promptly remove from the Website, all instances of the Software and the Service and promptly return to 360 Sports, or at 360 Sports’s request destroy, any and all copies of the Software, Service or other information relating to the intellectual property of 360 Sports in your possession. Sections 1, 4, 7, 8, 9, 10, 11 and 12 will survive termination of this Agreement for any reason.

Miscellaneous

In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion will be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect. The paragraph headings herein are provided only for reference and will have no effect on the construction or interpretation of this Agreement. No waiver will be effective unless in writing. This Agreement will be governed by and construed in accordance with the laws of the State of California. Any dispute relating in any way to the 360 Sports Program or Terms of Service will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of California, without regard to principles of conflict of laws, will govern any dispute of any sort that might arise between you and 360 Sports. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Operating Agreement as a court would. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.

 

360 Sports reserves the right to update or modify this Agreement at any time and from time to time. When 360 Sports makes changes to this Agreement, the ‘last updated’ date at the top of this Agreement will be revised. If there are material changes to this Agreement, we will notify you of any such modifications by posting a message on the 360 Sports website. You should periodically review this Agreement. Your continued use of the Software and Service after any changes or revisions to this Agreement will indicate your agreement with the terms of this Agreement. You may not assign this Agreement without the prior written consent of 360 Sports. This Agreement contains the entire agreement of the parties concerning the subject matter hereof and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter.

How to Contact Us

Please also feel free to contact us if you have any questions about this Privacy Policy or our information practices with respect to personally identifiable information. You may contact us as follows:

info@360sportsagency.com

360 Sports
244 5th Avenue, Suite R260
New York, NY 10001