SSAM Sports, Inc.
Terms and Conditions
Last Updated: October 4, 2016
Please read these term and conditions (the “Agreement”) carefully. This Agreement is a
legal agreement between you (“You”) and SSAM Sports, Inc. d/b/a 4D Motion Sports (“4D
Motion”). This Agreement specifies the terms and conditions under which You may use the 4D
Motion System. By accepting this Agreement, either by clicking a box indicating acceptance,
by executing an order form that references this Agreement, or by using the 4D Motion System,
You represent and warranty that: (1) You are at least 13 years old or older; (2) You have the
right and authority to legally bind yourself to the terms of this Agreement; and (3) You are
agreeing to the terms of this Agreement. If You are under age 18 but above 13, You are
permitted to use the 4D Motion System provided you do so with the consent of a parent or legal
guardian who accepts the Agreement on your behalf. If You are accepting this Agreement on
behalf of a company or other legal entity, You represent that You have the right and authority to
legally bind such entity to the terms of this Agreement. If You do not have such authority or do
not agree to all these terms, then You must not accept this Agreement and You may not use the
4D Motion System.
This Agreement is effective between 4D Motion and You as of the date You accept this
Agreement (the “Effective Date”).
1.1. “4D Motion System” means the Third Party Hardware, including the firmware and
computer programs embedded in the Third Party Hardware, the App, the Accessories, and the
1.2. “Accessories” means the 4D Motion System accessories, including but not limited to,
strap kit, connecting clips and carrying case.
1.3. “App” means the mobile application provided by 4D Motion as part of the 4D Motion
System. Your use of the App will be governed by the EULA which You will be required to
accept when You sign up to use the App.
1.4. “EULA” means the End User License Agreement applicable to the App.
1.5. “Notch” means Notch Interfaces, Inc. (www.wearnotch.com)
1.6. “Product” means the 4D Motion System, Third Party Hardware, App, and/or
Accessories ordered by You pursuant to the Order Form.
1.7. “Third Party Hardware” means the electronic sensor and docking station that is
manufactured by Notch Interfaces Inc. and provided by 4D Motion as part of the 4D Motion
1.8. “Website” means the website through which 4D Motion makes the Product available
2. Ordering Products; Shipping.
2.1. Ordering Products. You may purchase Product(s) through 4D Motion’s
Website. Upon purchase of Product(s), 4D Motion will send You an order confirmation email.
2.2. Shipping. 4D Motion shall ship Product(s) F.O.B. Origin via either United
States Postal Service Priority Mail, UPS Ground or FEDEX Ground. Risk of loss, damage or
destruction of or to any Product(s) passes to You upon delivery of the Product(s) to the common
carrier. 4D Motion will send You a shipping confirmation email upon shipment of your
3. Prices and Payment. For each Product You purchase, You agree to pay 4D Motion the
total purchase price made know to You when You purchase the Product.
4. Product Changes. 4D Motion reserves the right, in its sole discretion, to provide new
features and/or functionality for the Product or otherwise discontinue the sale of any Product
without any liability to You.
5.1. “Confidential Information” means nonpublic information revealed by or through a
Party (whether in writing, orally or by another means) (the “Disclosing Party”) to the other Party
(the “Receiving Party”) including, without limitation, (i) information expressly or implicitly
marked or disclosed as confidential, including, without limitation, all forms and types of
financial, business, scientific, technical, economic, or engineering information including
patterns, plans, compilations, program devices, formulas, designs, prototypes, methods,
techniques, processes, procedures, programs or codes, whether tangible or intangible, and
whether or how stored, compiled, or memorialized physically, electronically, graphically,
photographically, or in writing; (ii) information traditionally recognized as proprietary trade
secrets; and (iii) all copies of any of the foregoing or any analyses, studies or reports that contain,
are based on, or reflect any of the foregoing. For the avoidance of doubt, the 4D Motion System
and any and all intellectual property embodied therein or related to shall be considered 4D
Motion’s Confidential Information. Notwithstanding any of the foregoing, Confidential
Information does not include information which: (i) is or becomes public knowledge without
any action by, or involvement of the Receiving Party; (ii) is documented as being known to the
Receiving Party without any obligation of confidentiality prior to its disclosure by the Disclosing
Party; (iii) is independently developed by the Receiving Party without reference or access to the
Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the
Receiving Party without restrictions on use or disclosure from a third person who did not receive
it, directly or indirectly, from the Disclosing Party.
5.2. The Receiving Party will (i) protect the Disclosing Party’s Confidential
Information using the same degree of care that it uses to protect its own confidential information
(but no less than a reasonable degree of care), (ii) use such Confidential Information only in
connection with its performance of this Agreement; (ii) restrict disclosure of such Confidential
Information to its employees and contractors who have a need to know such Confidential
Information in connection with the Receiving Party’s performance of this Agreement and who
are bound to at least the same level of confidentiality required by this Section, and have agreed in
writing to the same level of confidentiality as set forth here, and (iii) not disclose such
Confidential Information to any third party without the Disclosing Party’s prior written consent.
5.3. If a Party is requested to disclose any of the other Party’s Confidential
Information pursuant to any judicial or governmental order, that Party will not disclose the
Confidential Information without first giving the other Party written notice of the request and
sufficient opportunity to contest the order, to the extent such notice and opportunity to contest
may be lawfully given.
5.4. The Receiving Party acknowledges that in the event of a breach of this Agreement
by the Receiving Party, substantial injury could result to the Disclosing Party and money
damages will not be a sufficient remedy for such breach. Therefore, in the event that the
Receiving Party engages in, or threatens to engage in any act which violates any provision of this
Agreement, the Disclosing Party shall be entitled, in addition to all other remedies which may be
available to it under law, to injunctive relief (including, without limitation, temporary restraining
orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this
Agreement. The Disclosing Party shall not be required to post a bond or other security in
connection with the granting of any such relief.
6. Warranty; Disclaimer; Limitation of Liability.
6.1. 4D Motion Warranty. 4D Motion’s warranties for the App are set forth in
6.2. Third Party Hardware Warranties. 4D Motion does not warrant and,
unless the Product Protection Plan has been purchased pursuant to Section 7, is not responsible
for any Third Party Hardware. Your sole and exclusive rights and remedies with respect to any
such Third Party Hardware are against Notch and not against 4D Motion. However, to the extent
permitted by 4D Motion’s agreement with Notch, 4D Motion shall either deliver the Notch’s
warranty directly to You or pass through, to the extent available, Notch’s warranty to You. 4D
Motion will coordinate with, and be the point of contact for resolution of the problem through,
Notch and, upon becoming aware of a problem, will notify Notch and will use commercially
reasonable efforts to cause Notch to promptly repair or replace the nonconforming item in
accordance with Notch’s corresponding warranty policy. To obtain warranty service for the
Third Party Hardware, You must first inspect and test the Third Party
Hardware in accordance with protocols provided by Notch. If problems persist, You
should go to the Notch’s
return warranty website at www.wearnotch.com/warranty, where You will be guided
through the return process, which may include the submission
of logs, the submission of video showing the malfunctioning of the Third Party
Hardware, and retrieval of a Return Merchandise Authorization. You must deliver the Third
Party Hardware, in either its original
packaging or packaging providing an equal degree of protection, to the address specified by
Notch. In accordance with applicable law, the third
party may require that You furnish proof of purchase details and/or comply with registration
requirements before receiving warranty service. You
are solely responsible to backup any data, software, or other materials You
may have stored or preserved on the Third Party Hardware because
it is likely that such data, software, or other
materials will be lost or reformatted during service, and the third
party will not be responsible for any such damage or loss.
6.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE
PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE.” 4D MOTION MAKES NO
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY PRODUCT YOU
PURCHASE HEREUNDER INCLUDING, BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND ANY WARRANTIES
ARISING OUT OF A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE
OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 4D
MOTION OR ANY 4D MOTION AUTHORIZED REPRESENTATIVE SHALL
CONSTITUTE A WARRANTY. YOU ASSUME ALL RESPONSIBILITIES FOR
SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR
THE USE OF THE PRODUCT. 4D MOTION MAKES NO REPRESENTATIONS ABOUT
THE SUITABILITY OF THE PRODUCT FOR ANY PURPOSE. Some jurisdictions do not
allow the exclusion of implied warranties or limitations on how long an implied warranty may
last, so such limitations or exclusions may not apply to You.
6.4. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, 4D MOTION WILL (1) IN NO EVENT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES
(INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS; LOSS OF
GOODWILL OR REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE, OR
CORRUPTION OF DATA) ARISING FROM OR RELATING TO THE PRODUCT OR ITS
USE, WHETHER CLAIMED IN AN ACTION UNDER CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY, EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY
SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND
(2) IN NO EVENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ACTUAL
DAMAGES ARISING FROM OR RELATING TO THE PRODUCT OR ITS USE, IN EXCESS
OF THE PRICE PAID BY YOU FOR THE PRODUCT. YOU ASSUME ALL RISK OF
PERSONAL INJURY TO YOU, OR ANY THIRD PARTY ASSOCIATED WITH THE USE
OF THE PRODUCT. Some states and/or jurisdictions do not allow the exclusion or limitation of
incidental or consequential damages, so the above limitations or exclusions may not apply to
7. Product Protection. If You have purchased a Product Protection Plan, 4D Motion shall
provide the applicable support services as set forth on
http://shopping.na1.netsuite.com/s.nl/c.3703581/sc.41/.f (“Product Protection Plan”).
8. Miscellaneous. The failure of either Party to exercise in any respect any right
provided for herein shall not be deemed a waiver of any further rights hereunder. If any
provision of this Agreement is found to be unenforceable or invalid, that provision shall be
limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise
remain in full force and effect and enforceable. You may not assign any of your rights or
obligations under this Agreement without 4D Motion’s prior written consent. 4D Motion may
freely assign its rights or obligations under this Agreement without your prior written consent,
including to a purchaser of all or substantially all of 4D Motion’s assets or business or in
connection with 4D Motion’s merger, consolidation, change of control or similar transaction.
This Agreement shall be governed by and construed in accordance with the laws of the State of
New Jersey without regard to the conflict of laws provisions thereof. All claims or disputes
arising out of or in connection with this Agreement shall be heard exclusively by any of the
federal or state courts of competent jurisdiction located in the State of New Jersey. The Parties
agree that this Agreement is the complete and exclusive statement of the mutual understanding of
the Parties and supersedes and cancels all previous written and oral agreements,
communications, and other understandings relating to the subject matter of this Agreement. Any
modification to this Agreement must be in a writing signed by both Parties. No agency,
partnership, joint venture, or employment is created as a result of this Agreement, and neither
Party has any authority of any kind to bind the other Party in any respect whatsoever.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT,
UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.