Effective Date April 26, 2013
2. Term, Termination and Survival. This FBCTOU is effective as of the Effective Date and shall remain in full force and effect for the period the 2013 FBC Service is available on the CBS Sports Web Site, unless earlier terminated as provided herein (the "Term"). Sections 7 through 12 of this FBCTOU and other provisions which are set to survive the Term herein shall survive the termination of this FBCTOU.
3. Eligibility. In order to participate in the 2013 FBC Service, you must be a Registered User, thirteen (13) years of age or older at the time of registration for the 2013 FBC Service.
4. 2013 FBC Service.
5. License and Proprietary Rights.
6. Representations and Warranties.
7. Disclaimer of Warranties.
THE 2013 FBC SERVICE, INCLUDING, WITHOUT LIMITATION, ALL CBSI CONTENT, SOFTWARE, DOCUMENTS, FUNCTIONS, MATERIALS, GRAPHICS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE CBSI SERVICE, ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CBSI AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE 2013 FBC SERVICE; (B) THE CBS SPORTS CONTENT MADE AVAILABLE TO YOU THROUGH THE 2013 FBC SERVICE; (C) THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE 2013 FBC SERVICE; (D) THE ABILITY OF THE 2013 FBC SERVICE TO WORK WITH ANY PARTICULAR CLIENT APPLICATION; AND/OR (E) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE 2013 FBC SERVICE. CBSI DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE 2013 FBC SERVICE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE 2013 FBC SERVICE OR THE SERVERS THAT MAKE THE 2013 FBC SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CBSI DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE 2013 FBC SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE 2013 FBC SERVICE, INCLUDING, WITHOUT LIMITATION, THE CBS SPORTS CONTENT, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE 2013 FBC SERVICE, INCLUDING, WITHOUT LIMITATION, THE CBS SPORTS CONTENT. FURTHER, CBSI AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
CBSI AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE 2013 FBC SERVICE INCLUDING, WITHOUT LIMITATION, THE CBS SPORTS CONTENT AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THIS FBCTOU.
8. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL CBSI AND ITS SUBSIDIARIES AND AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE 2013 FBC SERVICE, EVEN IF FORESEEABLE OR CBSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL CBSI'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU PAID FOR THE 2013 FBC SERVICE.
You agree to defend, indemnify and hold harmless CBSI and its subsidiaries and affiliates with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys' fees arising out of or in connection with this FBCTOU, including, without limitation, your use of the 2013 FBC Service, including, without limitation, the CBS Sports Content. Notwithstanding the foregoing, CBSI retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against CBSI herein under the terms and provisions of this Section 9 and in no event shall you settle any such claim without CBSI’s prior written approval.
You waive all rights to trial in any action or proceeding instituted in connection with these FBCTOU and/or the 2013 FBC Service. Any controversy or claim arising out of or relating to these FBCTOU and/or the 2013 FBC Service shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of New York, in the City of New York, County of New York
11. Governing Law and Jurisdiction.
THIS FBCTOU AND THE INTERPRETATION OF ITS TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES. For any matters which are not subject to arbitration as set forth in these FBCTOU and/or in connection with the entering of any judgment on an arbitration award in connection with these FBCTOU and/or the 2013 FBC Service, you irrevocably submit and consent to the exclusive jurisdiction and venue of the New York state and federal courts located in the City of New York, County of New York, and State of New York. The parties agree not to raise the defense of forum non conveniens.
This FBCTOU contains the sole and entire agreement between the parties with respect to the use of the Commissioner and supersedes any and all other prior written or oral agreements between them. Captions contained in this FBCTOU are inserted only as a matter of convenience or for reference and in no way define, limit, extend, or describe the scope of this FBCTOU or the intent of any provision of this FBCTOU. It is the intent of the Parties that neither this FBCTOU, nor any covenant in this FBCTOU, shall be construed against either party pursuant to the common law rule of construction against the drafter. It is the intent of the parties that said rule not be applicable to this FBCTOU. If any provision of this FBCTOU shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of this FBCTOU.
13. Report Violations
If you witness any user activity in the 2013 FBC Service that violates this FBCTOU, please notify us of the activity via the feedback form located at http://www.cbssports.com/help/contactus. CBSI cannot guarantee that any action will be taken as a result of your e-mail, but we appreciate your help in making the 2013 FBC Service an enjoyable experience for everyone.