EFFECTIVE:  JUNE 27, 2016

TERMS OF SERVICE

1. Thank you for visiting the website of (the "Site") of Ninety Degrees South, LLC ("NDS"), a limited liability company organized and validly existing in the State of Georgia.  Please carefully read these Terms of Service ("TOS"), which govern your use of the Service (as defined below) and the Site.  By using the Site or Service, you are representing and affirming that you have read and understand, and fully agree to be bound by, these TOS.  You agree that these TOS incorporate and adopt by reference and thereby include NDS’s Privacy Policy available at http://www.90DegreesSouth.com/privacy[A1] .  (For clarity and the avoidance of doubt, any personal information or material sent to the Site is subject to NDS’s Privacy Policy.)  Note that the Site may, from time to time or at any time, contain additional terms (“Additional Terms”) which apply to and govern your use thereof.  For example, a user who purchases any item via the Site will be subject to NDS’s Shipping Policy, and, if a return is necessitated, NDS’s Return Policy.  Certain portions of the Site may not be available to you unless you have registered.  If you do not agree to be bound by these TOS and the Privacy Policy, you may not use the Service or Site in any way.
2. DESCRIPTION OF THE SERVICE

In the Site, NDS provides users with access to marketing and retail sales of various proprietary products, including, without limitation, sportswear, casual clothing, and an array of miscellaneous branded merchandise (“the Service”).  You are responsible for obtaining access to the Site, and that access may involve third-party fees (such as Internet Service Provider or airtime charges).  In addition, you must provide and are responsible for all equipment necessary to access the Site.

1. LICENSE AND SITE ACCESS

NDS grants you a limited, revocable right and license to access the Site and Service for personal use.  This license does not include any downloading or copying of account information for the benefit of another vendor or any other third party; caching; unauthorized hypertext links to the Site and the framing of any content available through the Site; uploading, posting, or transmitting any content that you do not have a right to make available (such as the intellectual property of another party); uploading, posting, or transmitting any material that contains 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; any action that imposes or may impose (in NDS’s sole discretion) an unreasonable or disproportionately large load on NDS’s infrastructure; or any use of data mining, robots, or similar data gathering and extraction tools.  You may not bypass or attempt to bypass any measures used by NDS to prevent or to restrict access to the Site or Service.  Any unauthorized use by you shall terminate the right and license herein granted to you by NDS.

1. USER ELIGIBILITY

You are strictly prohibited from accessing or using the Service or Site if you are under the age of 18, or if your account has been suspended or removed by NDS for any reason.  You may not have more than one active account.  Additionally, you are prohibited from selling, trading, or otherwise transferring your NDS account to another party.  If you do not meet the foregoing eligibility requirements, you may not use the Service or the Site.

1. YOUR ACCOUNT

You represent and warrant that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction.  You also agree to provide true, accurate, current and complete information about yourself as prompted by the Site's registration form.  If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or NDS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, NDS has the right to suspend or terminate your account and refuse any and all current or future use of the Site and Service (or any portion thereof).  If you use the Site or Service, you are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer.  You agree to accept responsibility for all activities that occur under your account or password.  Because of this, we strongly recommend that you (i) exit from your account at the end of each session, (ii) do not retrieve your username and password for the Site by using any auto-fill features offered by your browser, (iii) clear your browser after each use of the Site, and (iv) do not use the same username and password to access this Site or the Service that you use on any other sites.  You agree to notify NDS immediately of any unauthorized use of your account or any other breach of security.  NDS reserves the right to refuse service, suspend or terminate accounts, or remove or edit content in its sole discretion for any reason or no reason.

1. USER-GENERATED CONTENT

The Site and Service may provide you and other users with the ability to send messages or post content (together, "Postings") to or for other users and non-users.  NDS reserves the right, but expressly disclaims any obligation, to review, edit, reject or remove user-generated content for any reason.  Posted user content is not always verified, and does not necessarily reflect the views, policies or practices of NDS or its affiliates. 

You fully acknowledge, understand, and agree that you are solely responsible for any Postings you may submit through the Site or Service, including, but not limited to, the legality, reliability, appropriateness, originality, ownership, and copyright of any such Postings.  You may not upload to, or distribute or otherwise publish through, this Site any Posting that:

1. is confidential, proprietary, invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful, racially, ethnically or otherwise objectionable, including, but not limited to any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable U.S. or foreign laws;
2. may contain software viruses or malware;
3. contains advertisements or solicitations of any kind, or other commercial content;
4. is designed to impersonate others;
5. contains personal information (such as messages that include phone numbers, Social Security numbers, payment card numbers, account numbers, addresses or employer references), except where we expressly ask you to provide such information;
6. contains messages by non-spokesperson employees of NDS purporting to speak on behalf of NDS or containing confidential information or expressing opinions concerning NDS;
7. contains messages that offer unauthorized downloads of any copyrighted, confidential or private information;
8. contains multiple messages placed within individual folders by the same user restating the same point;
9. contains chain letters of any kind; or
10. contains identical (or substantially similar) messages to multiple recipients advertising any product or service, expressing a political or other similar message, or any other type of unsolicited commercial message; this prohibition includes, without limitation, (a) using the invitation functionality that may be available on the Site to send messages to people who do not know you or who are unlikely to recognize you as a known contact; (b) using the Site to connect to people who do not know you and then sending unsolicited promotional messages to those direct connections without their permission; or (c) sending messages to distribution lists, newsgroup aliases or group aliases.

By way of any Posting you submit or make available through the Site or Service (other than personal information, which is handled in accordance with the Privacy Policy), you thereby grant to NDS a perpetual, irrevocable, non-terminable, worldwide, royalty-free, transferable and non-exclusive right and license, with the right to sublicense through multiple tiers or channels, to use, copy, distribute, publicly display, modify, adapt, publish, create derivative works, and sublicense such Posting or any part of such Posting, in any format or medium now known or hereafter developed.  You hereby represent, warrant and covenant that any Posting you provide to the Site or Service (i) does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right or authority to grant such a license to NDS, and (ii) does not and will not infringe the rights of any third party (including, without limitation, intellectual property rights, rights of privacy or publicity, or any other legal, personal, or moral rights).

You expressly release and hold harmless NDS, its officers, directors, employees, affiliates, agents, and any other entities acting under its authority, from and against any and all claims and liabilities of any kind arising out of or in connection with your Postings.  This release shall be binding upon your heirs, administrators, executors and assigns.

1. INTERNATIONAL USE

Because of the global nature of the Internet, you agree to comply with all local rules with respect to your account, if any, and your online conduct, including all laws, rules, codes and regulations of the country in which you reside and the country from which you access this Website, including, without limitation, all laws, rules, codes, regulations, decrees, acts, orders, directives, legislation, bills and statutes pertaining to tax, contracts, intellectual property, securities, e-commerce, banking, technology, computers, fraud and privacy.  In addition, you agree to comply with all applicable laws, rules, codes and regulations regarding the transmission of technical data exported from the United States.

1. ACCURACY OF INFORMATION

All information contained within the Site, or that forms part of the Service, is subject to change without notice.  While we strive relentlessly to provide accurate and up-to-date material on the Site and in the Service, certain errors or omissions may occur.  To the maximum extent permissible by applicable law, we expressly disclaim all warranties or representations of any kind as to the accuracy, completeness, timeliness, and usefulness of the material on this Site and in the Service, and assume no liability or responsibility whatsoever for any errors or omissions on this Site and in the Service.

Should there ever be any conflict between the TOS set forth on this Site or in the Service and any other relevant or ancillary terms and conditions pertaining to a user’s interactions or transactions with NDS, these TOS shall govern and control. 

1. DISCLAIMER OF WARRANTY

ALL CONTENT, PRODUCTS, AND SERVICES ON THE SITE, OR AVAILABLE THROUGH THE SERVICE, OR OBTAINED FROM A WEBSITE TO WHICH THE SITE IS LINKED (A "LINKED SITE") ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY.  NDS DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH THE SITE OR SERVICE BY ANY PARTY, (B) ANY CONTENT PROVIDED ON LINKED SITES, OR (C) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE.  OTHER THAN AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL NDS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER'S RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE OR A LINKED SITE, OR A USER'S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE.  IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE.  PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT.

1. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT NDS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, THIRD PARTY, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM USE OF THE SITE, CONTENT OR ANY RELATED SERVICES.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.  IN SUCH JURISDICTIONS, NDS’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.  THE USE OF THIS SITE AND THE SERVICE, AND ANY SITES LINKED TO OR FROM THIS SITE, IS ENTIRELY AT YOUR RISK.  NDS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY DAMAGE TO YOU, YOUR COMPUTER, OR YOUR OTHER PROPERTY, DUE TO YOUR ACCESS TO OR USE OF THIS SITE OR THE SERVICE OR THE DOWNLOADING OF ANY MATERIALS PROVIDED ON THIS SITE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY VIRUSES THAT MAY INFECT YOUR COMPUTER.

THIS SITE, INCLUDING THE SERVICE, USES INDUSTRY STANDARD AND COMMERCIALLY REASONABLE SECURITY MEASURES TO PROTECT THE INTEGRITY OF THE INFORMATION UNDER OUR CONTROL.  HOWEVER, THE INTERNET DOES NOT OFFER COMPLETE CONFIDENTIALITY AND SECURITY.  COMMUNICATION OVER THE INTERNET IS SUBJECT TO POSSIBLE INTERCEPTION, LOSS AND ALTERATION.  IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL NDS OR ITS THIRD-PARTY ADMINISTRATORS/CONTRACTORS, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS AND AFFILIATES BE RESPONSIBLE FOR ANY DAMAGES YOU OR ANYONE ELSE MAY SUFFER AS A RESULT OF THE TRANSMISSION OF CONFIDENTIAL OR SENSITIVE INFORMATION OVER THE INTERNET.  ALL SUCH COMMUNICATION WILL BE AT YOUR OWN RISK.

1. INDEMNIFICATION

You will indemnify and hold harmless NDS and its officers, directors, employers, third-party administrators/contractors, agents, and affiliates from and against any and all claims, fines, penalties, liabilities, losses, and any other damages of any kind whatsoever (including, but not limited to, attorneys’ and experts’ fees and court costs), incurred by NDS and such parties, and shall defend NDS and such parties against any and all claims arising out of (1) your use or misuse of the Service; (2) your breach of these TOS; (3) fraud you commit, or your intentional misconduct or gross negligence; or (4) your violation of any applicable U.S. of foreign law or the rights of any third party.  NDS will control the defense of any claim to which this indemnity may apply, and in any event, you shall not settle any claim without the prior express written approval of NDS.

1. FORCE MAJEURE

Under these TOS, NDS shall be excused from performance, in whole or in part, (to the extent it is prevented from or delayed from performing), due to a chronic or severely disabling event or a series of severely disabling events (commonly known as a “Force Majeure”) caused by or resulting from, without limitation, (1) life-endangering acts of God or extremely hazardous elements of nature (e.g., perilous weather conditions); (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, (5) restrictive governmental or legislative actions or orders, and (6) other adverse business conditions beyond the reasonable control of NDS.  In the event that NDS is temporarily unable to ship to you a purchased item because of a Force Majeure, NDS will give you the option of deferring shipment or receiving a full refund of your charges.

1. ELECTRONIC COMMUNICATIONS

When you use the Site or the Service or send emails to NDS, you are communicating with NDS electronically.  You consent to receive communications electronically from NDS and/or any of its authorized third-party administrators.  NDS will communicate with you by email or by posting notices on the Site.  You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing.

1. LINKED SITES

If you link to any sites, or access any third party resources, from this Site, you do so at your own risk.  NDS has not reviewed the contents of any Linked Sites.  NDS does not endorse the content, products or services of any Linked Sites, and accepts no responsibility for the content, accuracy, or functionality of such Linked Sites.  You further acknowledge and agree that NDS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, goods or services available on or through any Linked Sites.  NDS reserves the right to terminate a link to a third party website at any time. 

1. UPDATES TO TOS AND NOTIFICATION OF CHANGES

NDS, in its sole and absolute discretion, reserves the right to make changes to the Site, Service, these TOS, the Privacy Policy, and any other Additional Terms and agreements at any time.  If NDS makes a material modification to these TOS, it will notify you by:  (i) sending you an email to the address associated with your account; or (ii) displaying a prominent announcement above the text of these TOS or the Privacy Policy, as appropriate, for thirty (30) days, with (i) or (ii) being deemed sufficient notification, of such changes.  (NDS is not responsible for your failure to receive an email due to the actions of your ISP or any email filtering service; therefore, you should add www.90DegreesSouth.com to the list of domains approved to send you email (commonly known as your “whitelist”).)

After notice of a modification to the TOS or the Privacy Policy has been posted for thirty (30) days, the notice may be removed.  If you choose to continue using the Site or Service, you agree that by doing so you will be deemed to accept the new or revised TOS or Privacy Policy, as applicable.

1. COPYRIGHTS AND TRADEMARKS

NDS owns all copyright rights in and to all text, images and other materials on this Site and the Service.  You may print a copy of the information contained herein for your personal use only, but may not reproduce or distribute the text or graphics to others or substantially copy the information on your own server, or link to this Site, without prior written permission of NDS.  You may request permission by emailing a request to Customerservice@90DegreesSouth.com. 

90 Degrees South is a pending trademark of Ninety Degrees South, LLC.  The trademarks, service marks, logos, slogans and other forms of intellectual property (collectively, "Marks") displayed on this Site are the sole and exclusive intellectual property of their respective owners, including NDS (or its affiliates and third-party administrators) or other parties.  Except as provided for in these TOS, your use and/or misuse of the Marks, or of any other content, displayed on this Site is strictly prohibited.  Nothing on this Site or in the Service should be construed as granting to any user, by implication, estoppel, or otherwise, any license or right to use any Mark without NDS’s or the respective owner’s written permission.  The name Ninety Degrees South, LLC, 90 Degrees South, or our logo may not be used in any way, including in advertising or publicity pertaining to distribution of materials on this Site, without prior express written permission.  You are not authorized to use NDS’s logo as a hyperlink to this Site unless you obtain NDS’s prior explicit written permission, including, among other things, directives as to the manner and duration of such use.

NDS is free to use any ideas contained in any communication you send to this Site for any purpose whatsoever.  Anything you transmit or post becomes the property of NDS and may be used for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting.  By using this Site, you agree not to submit content that is copyrighted or that contains trademarks.  Except as may be otherwise expressly provided for in these TOS, you hereby assign to NDS any rights, title or interest that you may have in and to such ideas, communications, transmissions and/or posts and any related intellectual property rights.

1. INTELLECTUAL PROPERTY COMPLAINTS (DMCA POLICY)

NDS respects the intellectual property of others, and we ask our users to do the same.  NDS may, in appropriate circumstances and at its sole and absolute discretion, disable, suspend, or terminate the accounts of users who may be infringing the intellectual property of a third party.  If you believe that your work has been copied and is accessible on the Site in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, you may notify NDS by providing the following information (as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. sec. 512 ("DMCA")) to the copyright agent set forth below:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that you claim has been infringed;
• a description of where the material that you claim is infringing is located on the Site;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

NDS’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:

Ninety Degrees South, LLC

Attn:  Copyright Agent/DMCA Notices

PO Box 2437

Loganville, Georgia 30052

By email:  Customerservice@90degreessouth.com

Note:  NDS may update the foregoing business and email addresses from time to time or at any time, subject to written notice to you.

1. SURVIVAL OF TERMS OF SERVICE

Notwithstanding any other provision of these TOS or any general legal principles to the contrary, any provision of these TOS which explicitly or implicitly imposes or contemplates continuing obligations on a party will survive the expiration or termination of these TOS.

1. GOVERNING LAW AND EXCLUSIVE JURISDICTION

You hereby agree to have any unresolved claim or dispute against NDS or its affiliates, relating to these TOS (including the Privacy Policy) and the Additional Terms, including the validity of this arbitration clause, resolved through binding arbitration with the National Arbitration Forum under its Code of Procedure.  You agree that the forum for any such arbitration proceeding shall be held exclusively in Atlanta, Georgia.  Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction.  Information may be obtained and claims may be filed at any office of the National Arbitration Forum or at P.O. Box 50191, Minneapolis, MN  55405.  This agreement shall be interpreted under the Federal Arbitration Act.

The internal, substantive laws of the State of Georgia shall govern the (i) interpretation and enforcement of these TOS, and (ii) content and materials contained in this Site, without giving effect to any conflicts of laws principles that would require the application of the laws of any other State.

1. GENERAL

If any of these TOS is deemed invalid, void, or for any unenforceable, the parties agree that a court of competent jurisdiction sitting in Atlanta, Georgia should endeavor to give effect to the parties’ original intent as reflected in the totality of the affected provision, and the invalid or unenforceable term shall be deemed severable and shall not affect the validity and enforceability of any remaining terms.  From time to time, or at any time, NDS may offer special promotional offers which may or may not be applicable to your specific NDS account.  The headings used herein have no legally binding effect or significance, are provided for reference purposes only, and do not limit the scope or extent of such sections.  The failure of NDS to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.  NDS does not guarantee that it will take action against all breaches of these TOS.  Except as otherwise expressly provided in these TOS, there shall be no third-party beneficiaries to these TOS.  Other than all applicable Additional Terms, these TOS constitute the entire agreement between you and NDS, govern your use of the Site and Service, and supersede any prior or contemporaneous agreements between you and NDS with respect to the Site or Service.

1. CONTACTS WITH US

If you have any questions, comments or concerns about these TOS, this Site or the Service, please kindly contact us by email at Customerservice@90degreessouth.com. 

Alternatively, you also may write to us at:

Ninety Degrees South, LLC

Attn: Customer Service

PO Box 2437

Loganville, Georgia 30052

770/-828-7376