1. Acceptance of Terms
TheBigTourney.com Bracket Manager
Effective Date: February 25, 2021
If you are a wireless service subscriber and have a smartphone, tablet or wireless device that allows you to access this Bracket Manager product, you may use this Bracket Manager via any of those devices. If you choose to participate via any such wireless devices, you may be charged data rates in accordance with the Terms and Conditions of the wireless Service Agreement with your wireless carrier.
IMPORTANT NOTICE: THIS BRACKET MANAGER SERVICE IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 10 BELOW.
"TheBigTourney.com website" means TheBigTourney.com site available in the world wide web and located at the domain "TheBigTourney.com" or other domains as determined in the sole and exclusive discretion of THEBIGTOURNEY.
"TheBigTourney Content" shall mean any and all proprietary images, technology, applications, artwork, copy, information, trademarks, service marks, data, or knowledge or other materials made available to you as part of the Bracket Manager.
"Registered User" is a person who has successfully completed the registration form and has obtained a user identification ("ID") and associated password ("Password") on one of TheBIGTOURNEY network of websites, which currently include the following: TheBigTourney.com.
2. Term, Termination and Survival. This TERMS is effective as of the Effective Date (above) and shall remain in full force and effect for the period that the Bracket Manager is available on TheBigTourney.com website, unless earlier terminated as provided herein (the "Term"). Sections 7 through 12 of this TERMS, and other provisions set to survive the Term herein, shall survive the expiration and/or early termination of this TERMS.
3. Eligibility. In order to participate in the Bracket Manager, you must be a Registered User, who is twenty-one (21) years of age or older at the time of registration for the Bracket Manager.
4. Bracket Manager.
Sign Up for the Bracket Manager. Registered Users may sign up for the Bracket Manager by following the instructions on the Bracket Manager registration page accessible on TheBigTourney.com website.
No Internet Connection Equipment Provided. THEBIGTOURNEY shall not be obligated to, and you acknowledge that THEBIGTOURNEY will not, provide any bandwidth, modem, computer or any other equipment, system or connectivity for you to connect to the Internet. You shall be solely responsible for all modems, computers, operating systems, connection devices and bandwidth necessary for connecting to the Internet through which you can access the Bracket Manager and TheBigTourney Content.
Revision of the Bracket Manager. THEBIGTOURNEY may modify, suspend or discontinue any aspect of the Bracket Manager at any time, including, without limitation, the availability of any TheBigTourney Content. THEBIGTOURNEY may also impose limits on certain features and services or restrict your access to parts or all of the Bracket Manager and/or TheBigTourney Content without notice or liability of any kind.
No Accuracy of TheBigTourney Content. TheBigTourney Content contains information, advice, text and materials that are provided for your convenience and enjoyment. Third parties provide some of TheBigTourney Content. You should be aware that TheBigTourney Content might contain errors, omissions, inaccuracies, outdated information and inadequacies and that TheBigTourney Content may be subject to terms and conditions which may be found in the documents and policies of third parties. We make no representations or warranties as to the completeness, accuracy, adequacy, currency or reliability of any TheBigTourney Content and will not be liable for any lack of the foregoing.
No Warranty of Lawfulness of the Bracket Manager. THEBIGTOURNEY does not represent or warrant that every action you take with regard to your account and related activities in connection with the Bracket Manager, including, without limitation, TheBigTourney Content, will be lawful in any particular jurisdiction. It is incumbent upon you to know the laws that pertain to you in your jurisdiction and act lawfully at all times when using the Bracket Manager, including, without limitation, TheBigTourney Content.
Entertainment Purposes Only. The Bracket Manager is for entertainment purposes only and may not be used in connection with any form of gambling or wagering.
Suspension and/or Termination of the Bracket Manager. The Bracket Manager and its related benefits are offered at the discretion of THEBIGTOURNEY and THEBIGTOURNEY has the right to modify or discontinue, temporarily or permanently, the Bracket Manager, in whole or in part due to any unforeseen circumstances, including, without limitation, any game(s) cancellation, the absence of game(s) statistics, a pandemic (e.g. Covid-19) and/or any other reason, with or without notice to you. You agree that THEBIGTOURNEY will not be liable to you or to any third party for any modifications or discontinuance of the Bracket Manager.
5. License and Proprietary Rights.
Bracket Manager License. During the Term, THEBIGTOURNEY hereby grants to you, and you hereby accept, a personal, non-transferable, non-exclusive, limited, revocable license to view and use the Bracket Manager, including TheBigTourney Content (where applicable, in executable, object code form only). Nothing herein shall be interpreted to mean, and THEBIGTOURNEY does not grant you any right or license in any THEBIGTOURNEY materials or other proprietary images, trademarks, artwork, copy, information, data, knowledge, computer software or any other material or information of any kind.
No Sublicense. Nothing herein shall be interpreted to mean, and THEBIGTOURNEY does not grant you, any right or license to enter into sublicenses or redistribution agreements with respect to any portion of the Bracket Manager, including, without limitation, TheBigTourney Content.
Copyright Notices. The Bracket Manager, including without limitation, TheBigTourney Content, are protected by copyright pursuant to U.S. copyright laws, international conventions and other copyright laws and are owned or controlled by THEBIGTOURNEY. You will abide by any and all additional copyright notices, information, or restrictions contained in the Bracket Manager, including, without limitation, TheBigTourney Content or as THEBIGTOURNEY otherwise may impose from time to time.
No Derivative Works. You represent, warrant and covenant that you shall not reverse engineer, decompile, translate, modify or develop derivative works based on the Bracket Manager, including, without limitation, TheBigTourney Content.
No Contest of Rights. You acknowledge and agree that both during and after the Term, you shall not directly or indirectly contest or aid in contesting the validity or ownership of the Bracket Manager, including without limitation, TheBigTourney Content or take any action whatsoever in derogation of THEBIGTOURNEY's rights therein or in breach of any terms and conditions contained in this TERMS.
Reservation of Rights. Any and all rights to use the Bracket Manager, including, without limitation, any TheBigTourney Content not expressly granted to you under this TERMS, are hereby reserved for THEBIGTOURNEY. Nothing contained in this TERMS shall affect, impair or limit in any way THEBIGTOURNEY's rights to exploit fully the Bracket Manager, including, without limitation, any TheBigTourney Content.
Proprietary Rights. You acknowledge and agree that THEBIGTOURNEY owns and shall retain all rights, title and interest in and to the Bracket Manager, including, without limitation, TheBigTourney Content, including, without limitation, all copies thereof and all rights to patents, copyrights, trademarks, service marks, trade secrets and other intellectual property rights inherent therein and appurtenant thereto.
No License to THEBIGTOURNEY Trademarks. Nothing herein shall be interpreted to mean, and THEBIGTOURNEY does not grant you any right or license in any THEBIGTOURNEY trademark, trade name, service mark, insignia, slogan, name, emblem, logo, symbol, design and/or other identifying characteristics owned by or associated with THEBIGTOURNEY, its parent, subsidiaries or affiliates, in any manner whatsoever.
6. Representations and Warranties.
You represent, warrant and covenant that you will not upload, post, transmit, distribute or otherwise publish through the Bracket Manager any materials which: (a) restrict or inhibit any other user from using and enjoying the Bracket Manager; (b) are unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or indecent; (c) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate the law; (d) violate, plagiarize or infringe the rights of any third party, including without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other right of any third party; (e) contain a virus or other harmful or potentially harmful component; (f) contain any unsolicited or unauthorized advertising, promotional materials, spam, or any other kind of solicitation; and/or (g) constitute or contain false or misleading indications of origin or statements of fact.
7. Disclaimer of Warranties.
THE BRACKET MANAGER, INCLUDING WITHOUT LIMITATION, ALL THEBIGTOURNEY CONTENT, SOFTWARE, DOCUMENTS, FUNCTIONS, MATERIALS, GRAPHICS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH TheBIGTOURNEY SERVICE, ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THEBIGTOURNEY AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE BRACKET MANAGER; (B) THEBIGTOURNEY CONTENT MADE AVAILABLE TO YOU THROUGH THE BRACKET MANAGER; (C) THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE BRACKET MANAGER; (D) THE ABILITY OF THE BRACKET MANAGER TO WORK WITH ANY PARTICULAR CLIENT APPLICATION; AND/OR (E) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE BRACKET MANAGER. THEBIGTOURNEY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE BRACKET MANAGER OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE BRACKET MANAGER OR THE SERVERS THAT MAKE THE BRACKET MANAGER AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THEBIGTOURNEY DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE BRACKET MANAGER 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 BRACKET MANAGER, INCLUDING WITHOUT LIMITATION, TheBigTourney 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 BRACKET MANAGER, INCLUDING, WITHOUT LIMITATION, TheBigTourney CONTENT. FURTHERMORE, THEBIGTOURNEY AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THEBIGTOURNEY AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE BRACKET MANAGER INCLUDING, WITHOUT LIMITATION, TheBigTourney 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 TERMS.
8. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL THEBIGTOURNEY 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 BRACKET MANAGER, EVEN IF FORESEEABLE, OR IF THEBIGTOURNEY 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 THEBIGTOURNEY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED $100.00.
You agree to defend, indemnify and hold harmless THEBIGTOURNEY 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 TERMS, including without limitation, your use of the Bracket Manager, and TheBigTourney Content. Notwithstanding the foregoing, THEBIGTOURNEY 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 THEBIGTOURNEY herein under the terms and provisions of this Section 9, and in no event shall you settle any such claim without THEBIGTOURNEY's prior written approval.
You waive all rights to trial in any action or proceeding instituted in connection with these TERMS, TheBigTourney.com website, and/or the Bracket Manager Service. Any controversy or claim arising out of or relating to these TERMS, TheBigTourney.com website, and/or the Bracket Manager Service shall be settled by binding arbitration in accordance with the commercial arbitration rules of JAMS in accordance with the JAMS Comprehensive Arbitration Rules and Procedures, as modified by the JAMS Consumer Arbitration Minimum Standards. Class arbitrations and class actions are not permitted under any circumstances. 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 ARIZONA, in the City of San Francisco, County of San Francisco.
11. Governing Law and Jurisdiction.
THIS TERMS AND THE INTERPRETATION OF ITS TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES. For any matters subject to this TERMS the parties irrevocably submit and consent to the exclusive jurisdiction and venue of Arizona state and federal courts located in the City of San Francisco, County of San Francisco, and State of ARIZONA. The parties agree not to raise the defense of forum non conveniens.
This TERMS 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 TERMS are inserted only as a matter of convenience or for reference and in no way define, limit, extend or describe the scope of this TERMS or the intent of any provision of this TERMS. It is the intent of the Parties that neither this TERMS, nor any covenant in this TERMS, 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 TERMS. If any provision of this TERMS 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 TERMS.
NCAA®, NCAA SWEET SIXTEEN®, ELITE EIGHT®, and FINAL FOUR® are trademarks of the National Collegiate Athletic Association. The NCAA® is not a sponsor of this promotion.
13. Report Violations.
If you witness any user activity in the Bracket Manager that violates this TERMS, please notify us of the activity via the feedback form located at the bottom of your bracket site. THEBIGTOURNEY cannot guarantee that any action will be taken as a result of your email, but we appreciate your help in making the Bracket Manager an enjoyable experience for everyone.